!!Экзамен зачет 2023 год / The Law of Obligations

iuris nocet, facti vero ignorantia non nocet was the general rule,112 and it was based on the assumption that an error of fact was typically excusable, whereas an error of law was not.113 Thus, we now come across statements like the one contained in C. 1, 18, 10:

"Cum quis ius ignorans indebitam pecuniam persolverit, cessat repetitio. per

ignorantiam enim facti tantum repetitionem indebiti soluti competere tibi notum est."114

But some adjustments continued to be made at both ends of the spectrum. At least for certain groups of persons even an error iuris was regarded as excusable, and likewise even an error facti could sometimes be taken to be inexcusable.115

What was the function of the error requirement, as far as the condictio indebiti was concerned? A man who gave something in the knowledge that he was not bound to do so did not deserve to be protected if he decided to reclaim this object, after all. He appeared more like someone who had executed a donation;116 and a donation, as we know,117 could not be reclaimed either. In both instances, it was rather the recipient who could reasonably ask to be protected, for both solvens and donor had engendered in him the expectation that he might keep what he was given. On balance, this interest had to prevail against that of the other party to still be able to change his mind. Or, to put it slightly differently: in the absence of a good reason to grant a claim, the policy of the law was always quieta non movere.118 Justinian's distinction between error iuris and error facti, of course, added another facet to the ratio legis: the general public was required to know the law, and exclusion of the condictio indebiti in case of error iuris was regarded as a suitable way of sanctioning this duty.

7.Miscellaneous cases

(a)Pomponius' enrichment principle

The carving out of specific claims, each with their own requirements,

112Paul. D. 22, 6, 9 pr.; cf. supra, pp. 604 sq.

113Interestingly, the English common law, since the beginning of the 19th century, adopted a very similar approach; a plaintiff may not reclaim money that he has paid under a mistake of law: cf. Bilbie v. Lumley (1802) 2 East 469. The reason given by Lord Ellenborough was that "[ejvery man must be taken to be cognizant of the law; otherwise there is no saying to what extent the excuse of ignorance might not be carried" (p. 472).

114Cf. further the analysis by Schwarz, Condictio, pp. 105 sqq.; Visser, op. cit., note 100, pp 45 sqq.

115Visser, op. cit., note 100, pp. 52 sqq. But see also Gaspart-Jones, Hommage Dekkers, pp. 93 sqq., who disputes that any rule existed, at least in Justinian's time; whether or not the condictio indebiti was to be granted was determined according to what appeared to be equitable in the circumstances of the individual case.

116Cf. Paul. D. 50, 17, 53 ("Cuius per errorem dati repetitio est, eius consulto dati donatio est"); Paul. D. 46, 2, 12 {"Si quis delegaverit debitorem, qui doli mali exceptione tueri se posse sciebat, similis videbitur ei qui donat, quoniam remittere exceptionem

videtur"): Schwarz, Condictio, pp. Ill sqq.; Visser, op. cit., note 100, pp. 56 sqq.

117Cf. supra, pp. 480 sq.

118Cf. already supra, p. 846 (in pan turpitudine).

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is clearly conducive to legal certainty; at the same time, however, there is always a good chance of new cases cropping up which also deserve to be remedied but which do not fit into one of the existing niches. The question then arises whether, and if so how, to adapt the system in order to accommodate such novel situations. This question naturally presented itself to the Roman lawyers as far as unjustified enrichment claims were concerned; and what they obviously had to do was to try to find a common denominator for all the existing condictiones. What was the general principle that had justified the granting of specific enrichment actions and that could now be used to expand, but at the same time suitably contain, the range of claims?

Originally, of course, the condictio had been the fertile (procedural) mother of the (substantive) claims.'iy But, for one thing, it had become barren with the demise of the formulary procedure; and, for another the "dare oportere" had, of course, been much too abstract to play any useful role in giving shape and substance to the individual unjustified enrichment claims. Another similarly resourceful mother of legal rules and institutions was natural equity. That nobody should enrich himself at the expense of another, was an important precept based on it: "Nam hoc natura aequum est neminem cum altenus detrimento fieri locupletiorem", in Pomponius' well-known words.120 Justinian regarded this statement as so important that he included it, in a slightly modified version, among the diversae regulae iuris antiqui with which he rounded off his compilation.121 But, of course, it had never been a legal rule of immediate applicability. The Roman economy could hardly have flourished as it did if every enrichment at the expense of another had been frowned upon: all businessmen, after all, tend to make their profits at the expense of their competitors. The general equitable principle needed to be transformed into more specific legal rules. This is in fact what happened after the time of the Republic, and in a whole variety of fields do we find Pomponius' principle at work behind the scenes.122

One of these fields was the condictio, as far as it was used as an enrichment action. Thus we see, for instance, Papinian claiming that "fhjaec condictio ex bono et aequo introducta, quod alterius apud alterum sine causa deprehenditur, revocare consuevit".123 Which type of enrichment condictio he had in mind when he referred to "haec

"9John P. Dawson, Unjust Enrichment (1951), p. 42 elegantly describes the condictio as "the Roman general assumpsit" (on which, see supra, pp. 777 sqq. and infra, pp. 892 sqq.).

'-" D. 12, 6, 14. On the origin and background of this principle (stoic moral philosophy) and its reception into the legal system, see Christian Wollschlager, "Das stoische Bereicherungsverbot in der romischen Rcchrswissenschaft". in: Rimtisches Recht in der europaischen Tradition, Sytnposion fiir Franz Wieacker (1985), pp. 41 sqq.

'-' D. 50, 17, 206: "lure naturae aequum est ncminem cum alterius detrimento et iniuria fieri locupletiorem."

"" For all details, see Wollschlager, Symposion Wieacker, pp. 61 sqq. 123 I). 12, 6, 66.

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condictio", we do not know; it may have been the condictio indebiti (after all, the fragment was placed by Justinian in the title 12, 6) or the condictio ex causa furtiva. What is significant about the text is the historical link, of which it bears witness, between the precepts of fairness and equity and the use of the condictio as a claim to recover whatever of one's property happened to be, without good cause, in the

hands of another. The condictio causa data causa non secuta is likewise said to be grounded on the idea of what is just and fair;124 and in a

variety of other places naturalis aequitas,125 natura126 and ius gentium127 are referred to in the context of enrichment condictiones. All these texts have been subjected to radical criticism: how could the classical Roman lawyers, one argued, be taken to have conceived of such an intimate connection between the various emanations of the condictio (an actio stricti iuris!) on the one hand and natural law and equity on the other! We must be dealing here with one of those typically Byzantine attempts to replace the clear rules of classical Roman law by a somewhat amorphous equity jurisprudence.128 Yet it is not at all difficult to reconcile the one with the other. The condictio was, of course, an actio stricti iuris and once the praetor was prepared to grant the action, the judge had no discretion. Under which circumstances the plaintiff's duty of "dare oportere" could, however, be accepted, was a matter of interpretation, and in this regard the aequitas naturalis could indeed be of great significance. Thus it helped to shape the various enrichment condictiones; but at the same time it always remained available in a residuary function and never completely lost its creative potential.

Occasionally, individual decisions continued to be based directly on what appeared to be right and fair. Celsus D. 12, 1, 32129 is probably the

most prominent case in point. We are dealing here with the situation where A orders his debtor В to promise a loan to C.13() C, however,

124 Paul. D. 12. 6, 65, 4: "Quod ob rcm datur, ex bono ct aequo habet repetitioncm: vcluti si dem cibi, ut ahquid facias, ncc fecens."

123 Ulp. D. 12, 4, 3, 7 C'. . . scd ipse Celsus naturali aequitatc motus putat rcpeti posse"). l2fl Paul. D. 12, 6, 15 pr. ("Indebiti soluti condictio naturalis est - . ."); Tryphon. D. 12,

6, 64 (". . . ita debiti vcl non debiti ratio in condictionc naturalitcr intcllcgcnda est").

127Ccls. D. 12, 6, 47 (". . . quoniam indebitam iure gentium pecuniam solvit"); Marci. D. 25, 2, 25 (". . . nam iure gentium condici puto posse res ab his, qui non ex iusta causa

possident").

12H Cf., for example, Fritz Pringsheim, "Bonum et aequum", (1932) 52 ZSS 138 sqq.;

Cesare Sanfilippo, Condictio indebiti (1943), pp. 56 sqq.; Schwarz, Condictio, pp. 304 sqq. Contra, especially, Santoro, (1971) 32 Aniiali Palermo 216 sqq.; Wollschlage-r, Symposion Wieacker, pp. 82 sqq.; cf also Kupisch, op. cit., note 34, pp. 25 sq.

124 "Si et me et Titium mutuam pecuniam rogaveris et ego ineum debitorem tibi promitrcre iussenm, tu stipulatus sis, cum putarcs cum Titn debitorem esse, an mihi obligaris? subsisto, si quidem nullum ncgotium mccum contraxisti: sed propius est, ut obligan te existimem, non quia pecuniam tibi credidi (hoc enim nisi inter conscntientes fieri non potest): sed quia pecunia mea quac ad te pervenit. cam mihi a tc reddi bonum et aequum est." On this text, see Schwarz. Condictio, pp. 245 sqq.; Santoro, (1971) 32 Annali Palermo

273 sqq.

11(1 A deiegatio nominis, or debiti; on which cf. Kaser, RPr I, pp. 651 sq.

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believes В to be the debtor of Titius, not of A. As a result of C's error in persona, a contract between A and С has not come into existence.131 Nevertheless, С is under an obligation to return to A what he has received from him. Since A is deemed to have given the money that he was owed by B, to C,132 a mutuum would have come into existence between A and С but for C's mistake about the identity of his contractual partner. The situation is thus that С is deemed to have received the money from A: but as the intended loan transaction did not come into being, he appears to be enriched, sine causa, at the expense of A. A must therefore clearly be granted a claim; since, however, the transfer constituted neither an indebitum solutum nor a datio ob rem, neither condictio indebiti nor condictio causa data causa non secuta is applicable to effectuate the retransfer. Celsus, under these circumstances, merely refers to "[quod] bonum et aequum est" as the basis for A's claim.

(b) Retinere sine causa

Bonum et aequum, naturalis aequitas, ius gentium: these were, of course, rather unspecific guidelines to determine unjustified enrichment problems. It is hardly surprising, therefore, that the Roman lawyers attempted to identify criteria on a somewhat lower level of abstraction, but still transcending the specific requirements of the individual condictiones. Some of them, for example, experimented with the concept of negotium contractum; a condictio, they claimed, could be instituted only if the datio had been based on a cooperation between giver and recipient, supported by the intention of both of them to enter into a transaction. But although this criterion was occasionally used in order to exclude restitution,133 it could hardly hope to gain widespread support as a common denominator embracing all varieties of (enrichment) condictiones:134 the condictio ex causa furtiva, for example, obviously did not require a negotium contractum. Much more promising was the notion advanced by, among others, Papinian, when he reflected on the origins of "[h]aec condictio":135 the notion that something is found "apud alterum sine causa". Sine causa did not, of course, signify a lack of the causal basis required for the transfer of ownership. If, for example, a sedan chair was handed over in fulfilment of an invalid stipulatory promise, ownership passed to the recipient, for

131Cf. supra, p. 592.

132"Qui dcbitorem suum dclegat, pecuniam dare intellegitur, quanta ei debetur": lul. D. 46, 1, 18.

133lul. D. 12, 6, 33: "Si in area tua aedificassem et tu accles possidercs, condictio locum non habebit, quia nullum negotium inter nos contraheretur: nam is, qui non dcbitam pecuniam solvent, hoc ipso aliquid negotii gcrit: cum autcm aedificium in area sua ab alio positum dominus occupat, nullum negotium contrahit." On this text, cf. Schwarz,

Condictio, pp. 192 sq.

134But cf. Kascr, RPr 1, pp. 594 sq.

135D. 12, 6, 66: cf. supra, p. 852 (note 123).

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the traditio found sufficient "causal" support in the causa solvendi. Yet, since the underlying obligatory act was invalid, the recipient had acquired ownership "sine causa": his enrichment was not justified in the sense that he did not deserve to retain the object of the transfer. It was this absence of a causa retinendi, resulting either from the failure of the purpose of the performance (condictio indebiti, condictio causa data causa non secuta) or from an unjustified interference (condictio ex causa furtiva) that provided the key to the non-contractual condictiones.136

(c) Condictio oh causam finitam and condictio liberationis

But if the "sine causa" requirement lay at the root of all the recognized enrichment condictiones, it could also be used as a convenient touchstone of liability when it came to the discussion of novel types of situations. Thus we find, indeed, a variety of texts expanding the existing system of condictiones on the basis merely that the defendant

appeared to have acquired something sine causa. Take, for example, the case discussed by Ulpian and reported in D. 12, 7, 2.137 The owner of a

laundry receives clothes from a client. When he loses the clothes, his client brings the actio locati and obtains reimbursement of the value of the clothes. Later the client finds the clothes. It is obvious that the launderer should be allowed to reclaim what he had to pay under the actio locati. Yet that payment, at the time when it was made, was not indebitum solutum. The launderer owed the money and his client did not acquire it sine causa. It was only subsequently that his causa retinendi fell away: "etenim vestimentis inventis quasi sine causa datum videtur." Hence the (rather tentative) conclusion: "quasi sine causa datum . . . putamus condici posse". Cases of this kind were even allotted a special terminological compartment of their own: they came to be referred to as condictiones ob causam fmitam. One of the first references to the new species of condictio138 is contained in a text on sale.13y A purchaser of wine had given an arrha; later, however, the parties agreed to rescind their contract. As a result, the arrha obviously had to be given back, but, again, the condictio indebiti was of no avail. Julian therefore granted the condictio sine causa: "certe etiam condici poterit, quia iam sine causa apud venditorem est anulus." Ulpian

136 There is a vast literature dealing with the concept of causa (retinendi) in terms of the enrichment condictiones (as opposed to the causa required for the transfer by traditio), particularly as far as the condictio indebiti is concerned. Cf., for example, Sanfilippo, op. cit., note 128, pp. 52 sqq.; Schwarz, Condictio, pp. 191 sqq., 212 sqq.; August Simonius, "Zur Frage cincr einheitlichen 'causa condictionis' ", in: Festschrift fur Hans Lewaid (1953), pp. 161 sqq.; Wunner, (1970) 9 Ronwiitas 459 sqq.; Kaser, RPrl, pp. 595 sq.; Visser, op. cit., note 100, pp. 1 sqq.; idem (1988) 51 THRHR 492 sqq.; Kupiscb, op. cit., note 34, pp. 16 sq. Cf. also J.E. Scholtens, "Condictio indebiti and condictio sine causa", (1957) 74 SALJ 261 sqq.

On which see David Hughes, "D. 12. 7. 2", 1976 Juridical Review 156 sqq.

138On the historical development, cf. Liebs, Essays Hottore, pp. 178 sq.

139lul./Ulp. D . 19, 1. 11. 6.

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concurred and specified "quasi ob causam datus sit [sc: anulusj et causa finita sit".140

Another important example of a condictio sine causa was the socalled condictio liberationis. If someone had undertaken, by way of an abstract stipulation, to pay a certain sum of money or to deliver a specific object, the promise was valid irrespective of whether the underlying reason (causa) for which it had been given was flawed or not.141 If it was, the stipulator had received the promise sine causa. Despite the fact that this was neither a case of indebitum solutum nor of causa data causa non secuta, he had to render restitution. A specific procedural avenue was even made available for this purpose, because what the promisor asked for was neither certa res nor certa pecunia but "ut promissione liberetur", or simply "liberatio" (i.e. an incertum). Unless, therefore, the stipulator released him by means of acceptilatio,

the promisor could institute a condictio incerti (sine causa) against him.142

(d)Condictio sine causa

Justinian accommodated these two special types of situations in a separate Digest title: D. 12, 7, De condictione sine causa. "Est et haec species condictionis, si quis sine causa promiserit . . .", it starts143 and picks up the same theme (the condictio liberationis) at a later stage.144 The condictio ob causam finitam is referred to in the second fragment.145 Another case (Pap. D. 12, 7, 5)l4(i is possibly included because of the uncertainty whether to subsume it under the condictio ob rem or ob turpem vel iniustam causam. All this creates the impression that D. 12, 7 was meant to serve as a residuary category, comprising whatever did not fit in neatly with any of the other condictiones. When they referred to it in this particular function, the writers of the ius commune usually spoke of the condictio sine causa specialis.147 But there is another side to D. 12, 7, too. The introductory

140 D. 19, 1, 11, 6.

14^Cf. supra, pp. 91 sq.. 550.

142 Cf., for example, lul. P. 12, 7, 3 ("Qui sine causa obligantur, incerti condictione conseqm possum ut Hberentur . . ."); Iut. D. 39, 5, 2, 3 and 4: Ulp. D. 44, 4, 7 pr. and 1; Pomp./Paul. D. 19, 1. 5, 1; Wolf, Causa stipttlationis, pp. 152 sqq.; Kaser, RPr I, pp. 598 sq.: Kupisch, op. cit., note 34, pp. 3 s q . . 11 sq. Apart from suing for liberatio, the promisor could also defend himself against the stipulator's claim by means of the exceptio doli.

143Ulp. D. 12, 7, 1 pr.

144lul. D. 12, 7, 3.

145Ulp. D. 12, 7, 2; cf. also Ulp. D. 12, 7, 1, 2.

14" On which sec Gluck, vol. 13, pp. 189 sq.

A third group of cases usually classified and discussed sub titulo condictio sine causa specialis were those that fell somewhere in between the condictiones by transfer and the condictio ex causa furtiva. Cf.. for example, lul. D. 12, 1, 19, 1, as discussed supra, p. 840. This group of cases is included in Ulpian's comprehensive phrase "fc]onstat id demum posse condici alicui, quod . . . non ex iusta causa ad eum pervenit" (cf. also Liebs. Essays Honore,

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fragment already assures the reader that "this kind of condictio" (the condictio sine causa, one is bound to infer) also lies "si solvent quis indebitum".148 "|S]i ob causam promisit, causa tamen secuta non est" is then given as a further example of where it has to be said "condictionem locum habere".149 A condictio, the condictio, the condictio sine causa? If these (and some other) texts151' have to be taken to relate to the condictio sine causa, we must be dealing here with a remedy of very wide applicability; a remedy, in fact, that could be brought whenever any of the other, more specialized, condictiones could be instituted too. As such, it not only covered a hotchpotch of special cases but also swallowed up, as a kind of condictio (sine causa) generalis,151 all the standard situations of enrichment liability qua condictio. The whole of the title D. 12, 7 oscillates uneasily between the two poles of a condictio sine causa specialis and generalis. It was, however, only in its former function that the condictio sine causa trod new ground. As condictio generalis it did not extend the range of enrichment liability; its main significance, in this respect, was to pinpoint the common basis of all enrichment condictiones.

III.THE SUBSEQUENT FATE OF THE

CONDICTIONES

Just like the Roman contractual system, the whole range of condictiones supplementing it was received into the ius commune; and although the creation of a generalized law of contract was bound to jeopardize the basis on which they had once been devised, the Roman condictiones proved extraordinarily long-lived and made their way into many modern legal systems. To this day, they form the foundation of the South African law of unjustified enrichment and even make a somewhat quaint appearance in the German BOB. They are all still unmistakably Roman, but both their function and range of application have changed considerably. This is particularly obvious in the case of the condictio causa data causa non secuta.

1.Condictio causa data causa non secuta

(a)Ius poenitentiae

Originally, the condictio causa data causa non secuta was an integral part of the Roman law of restitution. It correlated to the datio ob rem,

p, 180). Generally on the condictio sine causa specialis, sec Gliick, vol. 13, pp. 183 sqq., 187 sqq.; De Vos, Vcnykiii%saansprecklikheid, pp. 29 sqq.

I 4 H Ulp. D. 12. 7, 1 pr.

149 Ulp. П. 12. 7, 1. 1.

IS" Cf.. for example, Afr. D. 12. 7. 4.

151 On which see, in particular, Wolf, Causa stipulationis, pp. 33 sqq., 40 sqq.

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which, in turn, derived its specific significance from the fact that the range of consensual contracts was strictly limited. Wherever two parties could not, nudo consensu, create contractual obligations, the position of the party performing first deserved protection. Since he could not enforce counterperformance, he had to be able, at least, to claim his own performance back.

This right to ask for restitution, causa non secuta, already lost its absolutely essential character with the rise of the actiones praescriptis verbis:152 for as soon as the recipient of the first performance could be sued to counterperform, the giver appeared to be sufficiently protected. In a way, therefore, recognition of the innominate real contracts stole the thunder of the condictio causa data causa non secuta; no longer indispensable, it remained available merely as an alternative remedy that provided whoever performed first with what effectively constituted a right of withdrawal from the contract. This right of withdrawal was peculiar to the innominate real contracts; an anomaly, incidentally, that was still enhanced by virtue of the fact that it could even be exercised on account of a simple change of mind.153 Medieval lawyers tended to distinguish these two issues. A person may withdraw from an innominate real contract, they said, either ex capite causae non secutae or ex capite poenitentiae.154 The ius poenitendi could be exercised until such time as the recipient of the first performance had counterperformed: "Cum enim is, qui dedit, non sit obligatus alteri", it was argued for several centuries,155 "a conventione recedere et mutare voluntatem potest", irrespective of whether or not the other party was prepared to honour his obligation and had perhaps even already incurred expenses on this account.156 A person who had given ob rem thus enjoyed a free discretion whether to institute a contractual claim or the condictio:

". . . in contractibus innominatis . . . in arbitrio est dantis, an actione praescriptis verbis ad contractum implendum, an vero . . . ad datum repetendum agere velit."157

(b) Condictio ratione cessationis causae

In strange contrast to these extremely liberal provisions, the condictio ratione cessationis causae (or: ex defectu causae)158 was much more narrowly confined. Justinian had regarded it as inequitable that the

152Cf. supra, pp. 532 sqq.

153Cf. supra, p. 844.

154Cf. Schemer, Rucktrittsrecht, pp. 23 sqq.; Wollschlager, Unmoglichkeitslehre, pp. 61 sqq.

155The quotation is taken from Struve, Syntagma, Exerc. XVIII, Lib. XII, Tit. IV, XV.

156He could, however, demand indemnification for these expenses: c?. Struve, Syntagma, Exerc. XVIII, Lib. XII, Tit. IV, XV; Schemer, Rucktrittsrecht, pp. 23 sq.

157Lauterbach, Collegium theoretko-practicum. Lib. XII, Tit. IV, Tab. ad IX.

158On the interpretation of "causa" in terms of the condictio causa data causa non secuta by the medieval lawyers (causa finalis), sec Alfred Sollner, "Die causa im Kondiktionenund Vertragsrecht des Mittelalters bei den Glossatoren, Kommentatoren und Kanonisten", (1960) 77 ZSS 195 sq., 203 sqq.

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recipient of the first performance should be exposed to a condictio, even where he was prevented from counterperforming as a result of fortuitous circumstances.

"Pecuniam a te datam", he ruled,159 "licet causa pro qua data est, non culpa accipientis, sed fortuito casu secuta non est, minime repeti posse certum est."

Having thus, in principle, introduced the criterion of fault into the sources dealing with the condictio causa data causa non secuta, he proceeded to qualify its range of application by retaining texts such as C. 4, 6, 5 where the condictio was granted, in spite of the fact that the recipient could not be blamed for being unable to do what was expected of him. C. 4, 6, 5, however, concerns a case of what we would today refer to as initial impossibility—a soldier had received money in order to act as procurator, an activity which he was not permitted to undertake.160 Even more importantly, Justinian also omitted to bring the relevant Digest title in line with the new regime. Generations of interpreters have thus been perplexed by the obvious discrepancy between the generally worded statement in C. 4, 6, 10 and Celsus' decision concerning a case where one party gave another money in order to receive the slave Stichus:161

". . . nulla hie alia obligatio est quam ob rem dati re non secuta . . . et ideo, si mortuus est Stichus, repetere possum quod ideo tibi dedi, ut mihi Stichum dares."

There is no reference in this text to the possibility that the death of Stichus may have been attributable to the fault of the recipient of that sum of money.

(c) Periculum debitoris and conditional synallagma

For the writers of the ius commune all these sources were, of course, equally authoritative and a most refined and intricate set of distinctions was therefore developed to bring about some form of reconciliation.162 In particular, one started to differentiate between various kinds of impossibility (initial or supervening, iure or facto, culpa or casu)163 and thus, incidentally, to lay the foundations for the modern, general

159C. 4, 6, 10 (Diocl.; interpolated: cf. Schwarz, Condictio, p. 147).

160"Si militem ad negotium tuum procuratorem fecisti, cum hoc legibus interdictum sit, ac propter hoc pecuniam ei numerasti, quidquid ob causam datum est, causa non secuta restitui tibi competens iudex curae habebit."

161D. 12, 4, 16 ("Dedi tibi pecuniam, ut mihi Stichum dares . . ."). This arrangement was classified as datio ob rem, not as a contract of sale; cf. Emil Seckel, Ernst Levy, "Die Gefahrtragung beim Kauf im klassischen romischen Recht", (1927) 47 ZSS 131 sqq.;

Arangio-Ruiz, Compravendita, pp. 150 sqq.; J.A.C. Thomas, "Celsus; Sale and the Passage of Property", in: Studies in the Roman Law of Sale in memory of Francis de Zulueta (1959), pp. 160 sqq.; D.E.C. Yale, "Celsus: Sale and Conditional Gift", in: Studies De Zulueta, pp. 171 sqq.

162Cf, for example, Struve, Syntagma, Exerc. XVIII, Lib. XII, Tit. IV, VI sqq.; the schematic exposition by Lauterbach, Collegium theoretko-practicum, Lib. XII, Tit. IV, Tab. ad IX; Gltick, vol. 13, pp. 30 sqq. and the discussion by Wollschlager, Unmoglichkeitslehre, pp. 56 sqq.; cf. also Coing, p. 496.

163Cf., today, still § 815 BGB; infra, note 175.

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impossibility doctrine.164 But the leniency displayed, by and large, towards a debtor who could not be blamed for not performing, must have been largely a matter of theory; for how a restricted right of restitution ratione cessationis causae could be made to coexist in a meaningful manner with a virtually unrestricted condictio ob poenitentiam dantis remained obscure. It was the French humanist Donellus who saw this unsatisfactory discrepancy and who attempted therefore to elevate the rule of D. 12, 4, 16, once again, to the status of a general principle. Even if the recipient was prevented from performing on account of casus fortuitous, he argued,165 he was liable, under the condictio causa data causa non secuta, tor restoration. Donellus thus removed the necessity for strictly separating the condictiones ex defectu

causae and propter poenitentiam. At the same time, he established the foundation of the general risk rule, contained today in § 323 BGB:1flf> for

if the recipient of the performance (i.e. the debtor of the counterperformance) remained exposed to the condictio causa data causa non secuta, irrespective of whether or not he could be blamed for not counterperforming, the risk of casus was in effect placed on his — the debtor's — shoulder. This regime of periculum debitoris gives expression to what is usually termed "conditional synallagma":167 the one party gives (or does) only in order to receive what the other party has agreed to give (or do) in return. Originating, historically, in the discussions surrounding the interplay between innominate real contract and condictio causa data causa non secuta, the principle of periculum debitoris eventually came to be extended to bilateral contracts in general: (supervening) impossibility of performance entails the loss of the right to claim, or to retain, the counterperformance agreed upon.

(d)"Hodie fhaec] condictio rara est"

Having thus displayed a remarkable capacity for initiating new doctrinal developments, the innominate real contracts were, however, ultimately doomed to wither away.168 It was, of course, the ascendancy of the notion that every ("naked") pact begets an action (ex nudo pacto oritur actio)lfl9 that sealed their fate: if the consensus of the parties already creates a contract, it no longer makes sense to maintain that in certain situations a person is bound only when he receives performance. With the innominate real contracts the so-called ius poenitendi, or condictio ex poenitentia, was also bound to fall away. In Germany this remained disputed for some time ("Gravis inde controversia resultat; an supposita simplici ilia pactorum validitate, poenitentiae adhuc locus sit

164

On which sec supra, pp. 687 sq. , 809 sqq. 16;>

Commentarii de jure civili, Lib. XIV, Cap. XXI, V. sqq. lflfl

Wollschlager, Unmoylichkeitslehre, pp. 64 sqq. 167 Cf. supra, p.

811.

:A8 Cf, as far as the parallel problem of the real contracts is concerned, supra, pp. 164 sq. 169 Cf. supra, pp. 537 sqq.

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