2 Solutio and Traditio

J L BARTON (OXFORD)

Upon D. 41.1.31pr (Paul 31 ad edictum):

“Nunquam nuda traditio transfert dominium: sed ita si venditio aut aliqua iusta causa praecesserit, propter quam traditio sequeretur.”

[“A bare delivery never transfers ownership, but only if a sale or other just cause has preceded it, upon account of which the delivery has followed”.]

Accursius comments:

“Iusta causa.

[“Just cause. True or putative. Otherwise, that is, if you say that a putative cause does not pass ownership, the whole title on the condictio indebiti would contradict your opinion, which title applies where the ownership of some thing is transferred upon a putative cause”.]

A conclusion from which there is no escape, if the debt be the cause of the pay­ment. To the superficial eye it might seem to make little difference if the cause of the delivery be the solutio. The ancient formula of release per aes et libram, Me eo nomine a te solvo, may well go back to a time when it was the debtor who was solutus, and if in very early times an obligation were not a mere vinculum iuris but a more substantial chain, solutio might be a matter of fact rather than of law. In the high classical period, however, it was the thing given in payment which was solutum, and if it were intended as a payment, it would be solutum though the debtor was not released and the debt not discharged:

“At ex contrario omnes res tam mancipi quam nec mancipi mulieribus et pupillis sine tutoris auctoritate solvi possunt, quoniam meliorem condicionem suam facere eis etiam sine tutoris auctoritate concessum est. 84. Itaque, si debitor pecuniam pupillo solvat, facit quidem pecuniam pupilli, sed ipse non liberatur, quia nullam obliga­tionem pupillus sine tutoris auctoritate dissolvere potest, quia nullius rei alienatio ei sine tutoris auctoritate concessa est, sed tamen si ex ea pecunia locupletior factus est at adhuc petat, per exceptionem doli mali summoveri potest.”

[“But upon the contrary all things, as well mancipi as nec mancipi, may be paid to women and pupils without the authority of their tutors, for they are allowed to better their condition even without the tutor’s authority.

By being applied to the thing paid, solvere has lost its original meaning of “to release”. Property in pecunia soluta passes if the payee has power to acquire. Whether he has power to release is immaterial, though if he have not the debtor remains debtor as he was before. It is equally immaterial that the money paid was not due.¹ It is widely held, however, that we must take solutio to have been a special case. Upon the Roman view, it was a bilateral transaction by which the debtor compounded with his creditor for the creditor’s claim against his person. Though solutio had to be distinguished from transactio after the legis actio per condictionem had been held to lie to recover back an indebitum, a debt was no more essential to a solutio than an exigible demand to a transactio.² Since Gaius does not treat a payment to a creditor who is legally incapable of any bilateral transaction whatever as an exception to the general rule, it is difficult to believe that solutio was held to be a bilateral transaction at the time when he was writ­ing. If it were treated, even originally, as a composition, it is remarkable that the Proculians held that a datio in solutum did not extinguish the debt though it gave the debtor an exceptio doli.³ In the case of penal actions, in which the penalty was undoubtedly regarded as a composition by which the wrongdoer bought off the revenge of the wronged party, a composition agreed between the parties had the same effect as a payment of the composition appointed by law, and the action was extinguished ipso iure.

¹ G. 3. 91.

² M Kaser, “Zur iusta causa traditionis”, (1961) 64 BIDR 61, at 69—81.

³ G. 3.168.

⁴ G. 4.21: “Per manus iniectionem aeque (de) his rebus agebatur, de quibus ut ita ageretur lege aliqua cautum est, veluti iudicati lege XII tabularum... 22. Postea quaedam leges ex aliis quibus­dam causis pro iudicato manus iniectionem in quosdam dederunt... 23. Sed aliae leges in quibus­dam causis constituerunt quasdam actiones per manus iniectionem, sed puram, id est non pro iudicato”. [“An action by manus iniectio was likewise brought in those matters where such proce­dure had been provided by a statute, for instance, by the XII Tables for a judgment debt... 22. Subsequently certain statutes dealing with various other cases appointed the action of manus debts, with deference be it said, are not analogous to delictual penalties.⁵ A defendant who has not wronged the plaintiff has nothing to compound for, whether he has refrained from wrongdoing from fear of the penalties of the law or from some higher motive. To contract a debt is not to wrong the creditor. Whatever allowance we make for the difference between archaic attitudes and our own, it would be strangely artificial to hold that a debtor by stipulation, for example, who paid without suit, was in effect compounding for the seizure to which he would become liable if he defaulted, and had his creditor brought an action against him on the stipulation and recovered judgment, and had the judg­ment not been satisfied within the thirty days of grace allowed by law.

Accursius seems to have borrowed his distinction between vera and putativa causa from a passage of Pomponius:

“Hominem, quem ex stipulatione te mihi debere falso existimabas, tradidisti mihi. Si scissem mihi nihil debere usu eum non capiam, quod si nescio verius est ut usucapiam, quia ipsa traditio ex causa quam veram esse existimo sufficit ad efficiendum ut id quod mihi traditum est pro meo possideo, et ita Neratius scripsit et ita verum puto.”⁷

[“You have delivered me a slave whom you wrongly thought that you owed me by stipulation. If I knew nothing was due to me I do not acquire him by usucapion, but if I do not know it is the better view that I shall, for the delivery itself, for a cause which I believe to be true, is sufficient to cause me to possess what has been delivered to me as my own, and so Neratius has written and I think this the true view”.] (D. 41.10.3, Pomponius 22 ad Sabinum)

Since a slave was a res mancipi, property in which did not pass by delivery, the question for Pomponius was whether the payment of an indebitum might be held a good title of usucapion, which, to judge from his cautious language, was not yet wholly settled when he was writing. He takes it for granted, however, that the payment of an indebitum is a delivery for a cause which the payee thinks to be true, which, on the authority of Neratius, he is willing to hold a sufficient title in this case. He does not find it necessary to say whether the cause which the payee thinks to be true is the debt or the solutio. For Paul, it was the solutio, which was a distinct title of usucapion:

iniectio against others, as if they were judgment debtors... 23. Other statutes however in certain cases laid down certain actions by �?pure’ manus iniectio, that is, not as if arising from a judgment debt”]. Though the word veluti is perhaps ambiguous, Gaius’s language suggests that all the cases known to him of manus iniectio for debts other than judgment debts were introduced by legislation subsequent to the XII Tables, on which he had written a commentary.

⁵Kaser, supra n.2, 75—6.

⁶ Gaius is an excellent witness to the traditional text of the XII Tables. If manus iniectio had been available more widely in early Roman law, which is a speculative question, this had been so thor­oughly forgotten that it is not a circumstance which is likely to have influenced the thinking of the classical jurists.

⁷ Upon this passage, see Th. Mayer-Maly, Der Putativtitelproblem bei der Usucapio (Graz and Koln, 1962) 62-4.

“Si existimans debere tibi tradam, ita demum usucapio sequitur si et tu putes debitum esse. Aliud, si putem me ex causa venditi teneri et ideo tradam. Hic enim nisi actio [emptio, edd.] praecedat, pro emptore usucapio locum non habet. Diversitatis causa in illo est, quod in ceteris causis solutionis tempus inspicitur, neque interest, cum stipulor, sciam alienum esse nec ne: sufficit enim me putare tuum esse cum solvis. In emptione autem et contractus tempus inspicitur et quod [quo, edd.] solvitur, nec potest pro emptore usucapere qui non emit, nec pro soluto sicut in ceteris con­tractibus”.

[“If I deliver to you thinking I am indebted, usucapion follows only if you also think it due. It is otherwise if I think I am liable by reason of a sale and therefore deliver, for here unless there be a precedent sale there can be no usucapion as purchaser. The rea­son for the diversity is this, that in other causes the time of payment is looked to, nor is it material whether I know the thing to be another’s or not when I stipulate, for it is enough that I think it is yours when you pay. In a purchase, however, both the time of the contract is considered and the time of performance, nor can one who has not bought acquire by usucapion as a purchase, nor as a payment, as in other contracts”.] (D. 41.3.48, Paul 2 manualium)

This seems to have been Paul’s own discovery. The silence of his senior con­temporary Ulpian cannot be attributed to the intervention of the compilers, for on one occasion at least they supplied it by inserting three words from Paul:

“...

[“the Publiciana lies not only for the purchaser in good faith, but for others, as for instance for one to whom a thing not yet acquired by usucapion is delivered as a dowry, for this is a very just cause, whether the thing be given in dowry at a valuation or not. So if a thing be delivered in satisfaction of a judgment”.] (D. 6.2.3.1, Ulpian 16 ad edictum)

“... vel solvendi causa” [“... or in payment”] (D. 6.2.4, Paul 19 ad edictum)

“... vel ex causa noxae deditionis, sive vera causa sit sive falsa” [“... or by reason of noxal surrender, whether the cause be true or false”] (D. 6.2.5, Ulpian 16 ad edictum)

There is therefore no reason to suspect that there are no earlier references to usucapion pro soluto in our surviving texts because the compilers have sup­pressed them. There are signs that a stricter view of causa usucapionis was developing in the late classical period.⁸ If it were settled by the time that Paul was writing that usucapion ran in favour of the payee of an indebitum, but any­thing given in payment might be said without any impropriety of language to be solutum, it was possible to avoid admitting, verbally at least, that this was a case in which a title which the payee thought to be true might be sufficient by hold­ing solutio a distinct title. Paul was a systematizing jurist who took no interest whatever in the history of the law. He could dismiss an opinion of Quintus

⁸Mayer-Maly, supra n.7, 38-44.

Mucius which was clearly not law when he himself was writing as ineptissi­mum:^[59] if it could have been maintained only from stupidity or ignorance in the third century AD, it might be assumed to have been an equally foolish opinion in the first century BC. It is most unlikely that he was influenced by pre-classical conceptions of solutio.

Paul might hold that his predecessors, who had established that usucapion ran in favour of the payee of an indebitum, had not correctly identified the title by which he acquired, but a jurist’s power to repudiate settled law is more lim­ited than his power to re-explain it. It was already vulgo traditum in Julian’s time that the possessor of a thing who believed that he had bought it could not acquire it by usucapion pro emptore unless he had bought it in fact, though Julian himself was willing to make an exception in favour of a possessor whose error was justifiable:

“Quod vulgo traditum est, eum qui existimat se quid emisse nec emerit non posse pro emptore usucapere, hactenus verum esse ait, si nullam iustam causam eius erroris emptor habeat; nam si forte servus vel procurator cui emendam rem mandasset per­suaserit ei se emisse atque ita tradiderit, magis esse ut usucapio sequatur.”^[60]

[“He says that the common tradition that one who thinks that he has bought a thing and has not bought it cannot acquire by usucapion as purchaser is true in so far as the buyer has no just cause for his error, for should it chance that a slave or procurator whom he had ordered to buy the thing has persuaded him that he has bought it and delivered it accordingly, the better view is that usucapion follows”.] (D. 41.4.11, Africanus 7 quaestionum)

Whether a putative buyer who could not acquire by usucapion pro emptore might acquire by usucapion pro soluto was a question which neither Julian nor Africanus had any occasion to ask, and to which Paul could give only one answer. If a putative buyer might acquire by usucapion pro soluto, so might an actual buyer, and usucapion pro emptore would be effectively abolished. According to our surviving texts, in Paul’s opinion a putative buyer could not acquire by usucapion because he could not show that he was in good faith at the time of the contract of sale if there were no contract of sale between him and the person from whom he had received the thing in dispute, a requirement for which he finds it necessary to offer a justification:

“Si ex testamento vel ex stipulatu res debita nobis tradatur, eius temporis existima­tionem nostram intuendam, quo traditur, quia concessum est stipulari rem etiam quae promissoris non sit.”

[“If a thing due by stipulation or by testament is delivered to us, our opinion at the time when it is delivered is to be considered, for it is permissible to stipulate even for a thing which does not belong to the promissor”.] (D. 41.3.15.3, Paul 15 ad Plautium)

A purchase of a thing which the buyer knew not to be the property of the seller was a perfectly legal and might well be a perfectly honest bargain, but the buyer would not be a purchaser in good faith in the eye of the law though he believed that the seller had acquired the thing from its owner before he delivered it, and though usucapion would have run in his favour had he stipulated for the same thing in the same circumstances. Since this distinction must be deemed to be founded upon some reason, it must be assumed that it was permissible to stipulate for goods which did not belong to the promissor, but that the law dis­approved a purchase of goods which did not belong to the seller, though it did not actually forbid it. The passage shows signs of abbreviation, but the deter­mination to discover a reason for a distinction which might appear arbitrary to the superficial eye is very characteristic of Paul.

As we have seen, Paul states in D. 41.3.38. that good faith is necessary both at the time of the contract and at the time of the delivery: a rule which is repeated in an extract from Paul’s commentary on the Edict which the compilers have placed in the title on usucapion pro emptore:

“Pro emptore possidet qui re vera emit, nec sufficit tantum in ea opinione esse eum ut putet se pro emptore possidere, sed debet etiam subesse causa emptionis. Si tamen existimans me debere tibi ignoranti tradam, usucapies. Quare ergo et si putem me ven­didisse et tradam non capies usu? Scilicet, quia in ceteris contractibus sufficit traditio­nis tempus. Sic denique si sciens stipuler rem alienam, usucapiam si cum traditur mihi existimem illius esse, at in emptione et illud tempus inspicitur quo contrahitur: igitur et bona fide emisse debet et possessionem bona fide adeptus esse.”

[“One who has bought in fact possesses as purchaser, and it is not sufficient merely that his state of mind be such that he thinks that he possesses as purchaser, but there must also be an underlying cause of purchase. If however I deliver to you thinking that I am indebted, and you do not know that I am not, you will acquire by usucapion. Why then will you not acquire by usucapion if I think that I have sold and I deliver? For this reason; that in other contracts the time of delivery is sufficient. Thus if I know­ingly stipulate for another’s thing I shall acquire by usucapion if I think it to be his when it is delivered to me, but in a purchase the time when the contract is made is also considered. Therefore he must have bought in good faith and have acquired posses­sion in good faith”.] (D. 41.4.2pr, Paul 54 ad edictum)

On the other hand Ulpian could say:

“Si aliena res bona fide empta sit, quaeritur, ut usucapio currat, utrum emptionis ini­tium ut bonam fidem habeat exigamus an traditionis. Et optinuit Sabini et Cassii sen­tentia traditionis initium spectandum.”

[“If another’s thing be bought in good faith, it is asked whether, that usucapion may run, we require a beginning of the purchase or of the delivery that he (it?) may have good faith, and the opinion of Sabinus and Cassius has prevailed that the beginning of the delivery is to be looked to”.] (D. 41.3.10pr, Ulpian 16 ad edictum)

This is certainly not Ulpian’s language. Since there is no subject for “habeat” save “aliena res”, the passage does not make very good sense if taken literally. Even if we take it according to what appears to be its intended sense rather than according to the words, the insistence upon good faith at the beginning either of the sale or of the delivery is puzzling. Since sale is a consensual contract, there is no sale until the parties are agreed, and the sale is complete the moment they agree. A delivery cannot be wholly instantaneous, but it was the good or bad faith of the possessor at the time when the disputed thing, not the consignment of which it formed a part, was delivered to him which was material. A buyer of several slaves might be a purchaser in good faith of some and a purchaser in bad faith of others of them,^[61] and Pomponius held that even a ring and the gem set in it were separately possessed and separately acquired by usucapion, since each retained its separate identity though they were physically joined.^[62] The delivery of a single object does not take so long as to make it probable that the jurists had much occasion to consider the position of a buyer in good faith at the beginning of the delivery who had discovered the truth before delivery was complete. The one argument in favour of this passage is that if Sabinus and Cassius held good faith necessary at the time of the delivery but not at the time of the contract and their opponents (presumably the Proculians) held it necessary at the time of the sale but not at the time of the delivery, neither opinion was law for the compil­ers, and it might be argued that though they have abbreviated this passage they have reproduced the former law by oversight. Julian held good faith at the time of the contract sufficient:

“Qui bona fide alienum fundum emit et possessionem eius amisit, deinde eo tempore adprehendisset quo scit rem alienam esse, non capiet longo tempore, quia initium secundae possessionis vitium non carebit, nec similis est ei qui emptionis quidem tem­pore putat fundum vendentis esse, sed cum traditur sciat alienum esse. Cum enim semel amissa fuerit possessio, initium rursus reciperatae possessionis spectari oportet.”

[“One who bought another’s land in good faith and lost possession of it, and has sub­sequently obtained it at a time when he knows the thing to be another’s will not acquire by long possession, for the beginning of his second possession will not be free of vice, nor is he similar to one who at the time of purchase thinks the property to be the seller’s, but knows it to be another’s when it is delivered, for since possession was once lost we should look to the beginning of the possession which has been recovered again”.] (D. 41.4.7.4, Julian 44 digestorum)

Since it was possible, though not very usual, for Cassius and Nerva to take one view and Sabinus and Proculus the other,^[63] it would hardly be impossible for Julian to disagree with the founders of his school, but there is respectable though not conclusive manuscript authority for the reading “nec dissimilis est ei qui emptionis quidem tempore putat fundum vendentis esse”^[64] [and he is not dissimilar to one who at the time of purchase thinks the property to be the seller’s], which would make him their supporter. We also find:

“lulianus libro septimo Digestorum scripsit traditionem rei emptae oportere bona fide fieri: ideoque si sciens alienam possessionem adprehendit Publiciana eum experiri non posse, quia usucapere non poterit, nec quisquam putet hoc nos existimare sufficere, initio traditionis ignorasse rem alienam uti quis posset Publiciana experiri, sed oportere et tunc bona fide emptorem esse.”

[“Julian wrote in the seventh book of his Digests that delivery of the thing bought must be made in good faith. Hence if he knowingly acquire another’s possession he cannot proceed by the Publiciana, because he cannot acquire by usucapion, nor let anyone imagine we think it to suffice to entitle a party to proceed by the Publiciana that he did not know the thing to be another’s at the beginning of the delivery, but he must be a purchaser in good faith then also”.] (D. 6.2.7.17, Ulpian 16 ad edictum)

But the latter portion of this passage, from “nec quisquam putet”, is obviously spurious, though it could be taken as an indication that Julian was cited in the original as holding good faith at the time of delivery sufficient, and the compil­ers found it necessary to correct his opinion; “ideoque si sciens alienam posses­sionem adprehendit Publiciana eum experiri non posse, quia usucapere non poterit” is not very classically expressed, and the discussion of usucapion is arguably out of place. The model formula of the actio Publiciana required that it should appear to the judge that the plaintiff had bought the disputed slave, that the slave had been delivered to him, and that he would have owned the slave had he possessed him for a year.¹⁵ Ulpian was apparently going through the clauses of the formula in order, and this seems to be part of his comment on the words [et] is ei traditus est ([and] he has been delivered to him). Whether the slave had been delivered to the plaintiff and whether the plaintiff would have owned him had he possessed him for a year were distinct questions, and whether the plaintiff had been in via usucapiendi was relevant to the latter rather than to the former. It is possible that Julian made some observation upon the wording of the formula for which the compilers substituted an observation on the requirements of usucapion because the formula was no longer in use.¹⁶

Although, however, the compilers have managed to reduce the texts on usu­capion pro emptore to a very dismal state of confusion, and neither of our two passages from Paul is so worded as to inspire complete confidence, to infer from them that the delivery of goods sold was no solutio is to assume that if the payee of an indebitum acquired by usucapion pro soluto, any payee might acquire by

¹⁵ G. 4.36: “Si quem hominem A^s A^s emit [et] is ei traditus est anno possedisset, tum si eum hominem de quo agitur eius ex iure quiritium esse oporteret et reliqua”.

¹⁶ O Lenel, “Nachtrage zum Edictum Perpetuum”, (1899) 20 SZ 1, at 21—3, infers from the word­ing of Ulpian’s commentary that the words “bona fide” had been inserted before “emit” at the date when he was writing his commentary. The wording of the formula in the Veronese text of Gaius is imperfect, and the editors have inserted “et” to complete the sense. It is tempting, if distinctly spec­ulative, to conjecture that if Lenel is right, the formula was drawn in a manner which made it pos­sible to argue that the words “bona fide” qualified “traditus est” as well as “emit”, and that this was the question which Julian put. the same title, which we may doubt. A legatee who did not know that his legacy had been adeemed by a subsequent codicil might acquire by usucapion pro legato, and Paul was prepared to hold that usucapion might run if the legacy were in fact intended for another person of the same name.^[65] He does not sug­gest that in other cases the putative legatee might acquire by usucapion pro soluto, but it has not been suggested that the payment of a legacy per damna­tionem was no solutio. No text considers the possibility that a putative husband who could not acquire by usucapion pro dote because there could be no dowry if there were no marriage might acquire by usucapion pro soluto if he had stip­ulated for the dowry which he received. The simplest explanation is that like usucapion pro emptore, usucapion pro legato and pro dote were older than usu­capion pro soluto, and the position of the legatee and of the husband had been fully worked out before solutio was recognised as a distinct title.

An English lawyer may be excused for boggling at the further inference which modern scholars have drawn, that if the delivery of goods sold was no solutio property in res nec mancipi delivered to a putative buyer did not pass by the delivery, though no text expressly says so.^[66] In England property in goods passes by the sale rather than by the delivery. If there is no sale it does not pass. Hence if the seller believed that he was contracting with a different person, he may recover back his goods from anyone in whose hands he can find them. If he is deceived about the attributes but not about the identity of the other party, the contract is ordinarily voidable for fraud, but if the other party has disposed of the goods before it is avoided the seller is left to his remedy against him on the contract, which is unlikely to be of much practical use even if he has not suc­ceeded in disappearing. According to the younger Celsus, if I approach you and Titius for a loan, and I stipulate from your debtor believing him to be debtor to Titius, this is no mutuum, since there can be no mutuum save between consent­ing parties,^[67] and the disreputable and indigent Titius committed theft if he received money from a lender whom he knew to believe him to be the opulent and respectable Titius;^[68] but though consent was certainly no less necessary to a sale than to a mutuum no text considers the position if the same disreputable character acquires goods from a seller whom he knows to have mistaken him for his opulent and respectable namesake. The jurists were quite capable of distin­guishing between identity and attributes: Papinian held that I commit theft if I obtain payment of money due to Titius by representing that I am another person who is Titius’s procurator, but not if I merely represent that Titius has authorised me to receive the money.²¹ In England, as the reader might expect, the distinction has spawned a substantial body of subtle and not altogether con­sistent learning.²² That the Romans did not trouble even to consider the effect of mistake of identity upon a sale is easily explained, if whether property passed depended not upon whether the seller’s mistake prevented the formation of a contract of sale between him and the buyer, but upon whether it vitiated the delivery. If there were a contract, the seller would run no hazard of being sued upon it, and would not be much concerned to know whether he might sue upon it, for such an action would be worth bringing only in very exceptional circum­stances. If he might recover back his goods from third parties if there were no contract, the silence of the texts can hardly be explained unless we take the com­pilers to have suppressed the classical discussions.

Our one indubitably classical passage upon causa traditionis states merely that since property in res nec mancipi passes by bare delivery, “si tibi vestem vel aurum vel argentum tradidero sive ex venditionis causa sive ex donationis sive quavis alia ex causa, statim tua fit ea res, si modo ego eius dominus sim” [“if I deliver you a garment or gold or silver, whether by reason of sale or of gift or for any other cause, that thing becomes yours immediately, provided that I am its owner”].²³ We may at least infer that causa traditionis caused few difficulties in practice. Gaius was writing for beginners, who could not be expected to understand terms of the law which were not explained to them, but he does not find it necessary to attempt to define a causa traditionis. Sale and donation are typical causae, but any other causa is sufficient. It would appear to follow that, in this context at least, the legal sense of causa did not differ from its popular sense, or at least, not sufficiently for a student beginning the study to be seri­ously misled by the statement that property would pass by a delivery “quavis alia ex causa”. Since causa could be used in a sense in which it may be translated as “reason” or “motive,” our hypothetical student could not be expected to assume that a delivery of goods which the party delivering them believed that he had sold could not be a delivery ex causa venditionis, and if no text expressly states that property would pass by a delivery of goods intended as a dowry, though the goods were no dowry because the purported marriage was no mar­riage, if a woman went through a form of marriage with a slave whom she believed to be free, and gave him a dowry, she would be put to her actio de peculio against his master when she discovered the truth.²⁴ If a free man went

²¹ D. 47.2.81.6 (Papinian 12 quaest.} “Falsus autem procurator ita demum furtum faciet, si nomine quoque veri procuratoris quem creditor habuit adsumpto, debitorem alienum circum­venerit, quod aeque probatur et in eo qui sibi deberi pecuniam ut heredi Sempronii creditoris adsev- eravit, cum esset alius.” [“A false procurator commits theft only if he has deceived another’s debtor by assuming the name of a genuine procurator whom the creditor had. The same principle applies to one who has alleged that money was due to him as heir of Sempronius, the creditor, when the heir was another person.”]

²² The decisions are collected in Chitty on Contracts (London, 1994) vol. 1, 310—12.

²³ G. 2.20.

²⁴ CJ 5.18.3. (Imp. Antoninus A. Hostiliae). through a form of marriage with an ancilla whom he believed to be free and a third person contributed a sum of money as a dowry for her he was in the same position as if he had given a dowry for a free woman and the marriage had not taken place. He might recover back his money by condictio, unless he had meant it as a gift for the woman, in which case her master might recover it by condic­tio.^[69] A putative causa dotis was not a sufficient causa usucapionis,^[70] but it was as good a causa traditionis as an actual causa dotis. The younger Celsus, politely dissenting from his father’s opinion that a former slave manumitted by testa­ment on condition that he paid a sum of money to the testator’s heir would not be able to recover back the money which he had paid in ignorance that the con­dition had been revoked by a subsequent codicil, did question whether the heir became owner of the money paid him, but his ratio dubitandi was that owner­ship does not pass if I pay you my own money believing it to be yours. If the freedman had paid the heir out of his acquisitions since the testator’s death in ignorance that he was free already he would have paid the heir his own money in the belief that it belonged to the heir.^[71] There is no sign that it was ever ques­tioned that if Titius delivered money or goods to Maevius in the belief that he had been instituted heir or left a legacy on condition that he did so, ownership would pass to Maevius, and that Titius would be put to his condictio if he were mistaken. Since Titius was under no obligation to perform the condition a datio ob condicionem was no solutio, nor was it a gift, for Titius might recover it back not only if he had mistaken the terms of the will, but if he had changed his mind and decided to refuse the testator’s bounty;^[72] but no jurist appears to have sug­gested that if he were mistaken it might be questioned whether there were a suf­ficient cause to support the traditio. The sufficiency of a putative cause is not discussed in our surviving texts, though there does seem to have been a doubt whether property might pass if the parties were not agreed upon the cause; a point upon which Ulpian appears to have differed from Julian:

“Si ego pecuniam tibi quasi donaturus dedero, tu quasi mutuam accipias, Iulianus scribit donationem non esse, sed an mutua sit videndum. Et puto nec mutuam esse magisque nummos accipientis non fieri, cum alia opinione acceperit, quare si eos con­sumpserit, licet condictione teneatur, tamen doli exceptione uti poterit, quia secun­dum voluntatem dantis nummi sunt consumpti. 1. Si ego quasi deponens tibi dedero, tu quasi mutuam accipias, nec depositum nec mutuum est: idem est et si tu quasi mutuam pecuniam dederis, ego quasi commodatam ostendendi gratia accepi: sed in utroque casu consumptis nummis condictioni sine doli exceptione locus erit.” [“If I have given you money as a gift and you receive it as a loan, Julian writes that it is no gift, but we must see whether it is a mutuum. And I think it is no mutuum and the better opinion is that the coins do not become the property of the party who receives them, since he received them with a different intention. Hence if he has con­sumed them, although the condictio lies against him he may plead the exception of fraud, since it was the intention of the giver that the coins should be consumed. 1. If you accept as a mutuum what I have given you as a deposit, this is neither deposit nor mutuum. So if you have given me money as a mutuum and I have received it as a loan not for consumption but for show, but in both cases if the coins have been consumed the condictio will lie without an exception of fraud.”] (D. 12.1.18pr, Ulpian 7 dispu­tationum)

“Cum in corpus quidem quod traditur consentiamus, in causis vero dissentiamus, non animadverto cur inefficax sit traditio, veluti si ego credam me ex testamento tibi oblig­atum esse ut fundum tradam, tu existimes ex stipulatu tibi eum deberi. Nam et si pecu­niam numeratam tibi tradam donandi gratia, tu eam quasi creditam accipias, constat proprietatem ad te transire nec impedimento esse, quod circa causam dandi et accipi­endi dissenserimus.”

[“If we are agreed upon the thing delivered but disagree upon the causes I see no rea­son why the delivery should be ineffective, as if I believe that I am bound to you by tes­tament to deliver an estate and you think that it is due to you by stipulation, for if I deliver you coined money as a gift and you receive it as a loan it is settled that prop­erty passes to you and it is no impediment that we disagree upon the cause for which it is given and received.”]^[73] (D. 41.1.36, Julian 13 digestorum)

It is not very uncommon even today for a person who is obliged to turn for financial assistance to a relative or friend to save his pride by protesting that all that he requires is a loan which will infallibly be repaid the moment he has extri­cated himself from his present merely temporary difficulties, and to redouble his protestations if his benefactor makes it clear that he does not imagine that he can expect repayment and perfectly understands that “loan” is to be understood as a euphemism. It would hardly be less usual between persons as sensitive upon questions of status, and for whom status and solvency were so intimately con­nected, as the Romans of the litigating classes, and for a jurist, this illustration has the great advantage that it is a case of express dissensus in causis uncompli­cated by questions of error.

Ulpian was considering the circumstances in which an exceptio doli might be pleaded to the former owner’s condictio for goods which the defendant had consumed.^[74] We are to suppose the defendant’s benefactor has repented of his generosity and decided to take the defendant at his word, or, perhaps more probably, the benefactor’s heir proves less generous than his testator. The pas­sage seems to have been roughly handled. Ulpian cites Julian as holding that the money is not a gift. We are to consider whether it is a mutuum. Whether or not the phrase “an mutua sit, videndum” should be attributed to Julian,^[75] since Ulpian thinks—he uses the cautious “puto”—that it is no mutuum, this was not a perfectly straightforward question, and he could hardly have failed to mention Julian’s opinion. The compilers have struck it out either as erroneous or as redundant, for since the Digest had the force of law citations of authority were superfluous. Ulpian also holds it the better opinion that the money does not become the property of the payee, “cum alia opinione acceperit”—a false argu­ment, for if the payee accepted it as a mutuum he imagined that it was to become his property. Therefore, although the condictio lies after he has consumed the money he may bar it by exceptio doli, for the party who paid intended that he should consume it. This is singular logic. That property failed to pass was not in itself a sufficient reason to allow the condictio after consumption:

“... totiens condictio datur, quotiens ex ea causa numerati sunt ex qua actio esse potuisset si dominium ad accipientem transisset.”^[76]

[“... a condictio is granted as often as the money is counted out upon a cause upon which an action would have lain had ownership passed to the party who received it.”]

If the payment were neither a gift nor a mutuum it might be questioned whether there were any negotium between the parties. That the condictio would not lie without a negotium, like most juristic generalisations, was not an absolute rule. Julian was obliged to save the phenomena by holding that the payment of an indebitum involved an element of negotium—aliquid negotii.^[77] Nevertheless, that property had not passed and that there was no negotium between the parties were hardly affirmative arguments in favour of the condic­tio, or indeed reasons to hold that the exceptio doli would bar it, though Ulpian does give a further reason for this conclusion. The cautious manner in which he states his conclusion shows that the question was disputable, as might be expected of a question put in a book of disputationes, and the most probable explanation for the oddities of his reasoning is that the reasons are not his. He discussed the problem at a length which seemed excessive to the compilers, and they have substituted a compendious explanation of their own.

Julian was considering the effect of dissensus in causis upon a delivery of pos­session of land. Ownership of Italic land did not pass by delivery, for it was res mancipi, and provincial land could not be owned at all, but the delivery of pos­session of either had legal effects, and dissensus in corpore would render it inef­fective.^[78] The question is whether this is true of dissensus in causis. The case put is an extreme one. I believe that I am bound by testament to deliver you a prop­erty. You think it is due to you by stipulation. Apparently it is not material which of us is right, or whether we are both wrong. Upon the latter assumption, it might be questioned whether there is any cause at all. Nevertheless, Julian sees no reason to hold the delivery ineffective, since it is settled “constat” that if I pay you money as a gift and you accept it quasi creditam, property will pass to you. Since an efficax traditio of a res nec mancipi passes property, that property passes is a good argument to show that dissensus in causis does not render a delivery ineffective. That Julian does not consider whether the payment is a gift or a loan has been held a proof that this passage is at least abbreviated. It is at least equally probable that Ulpian was citing a different passage. Julian would have had to discuss this question had he been considering whether a condictio would lie against the payee for repayment, and he may well have done so when treating the condictio. He puts the case here merely as an analogy, to support his opinion that dissensus in causis does not vitiate a delivery. This was not the most appropriate context in which to consider whether the money might be recovered back, especially if this were a disputable question which could not be summarily despatched. Since Julian seems to treat the case as a standard exam­ple, there is no very good reason to assume that he could not have mentioned it twice. The fundamental objection to our passage is that if Julian did not think it necessary to state whether the payment were a gift or a mutuum or neither, he held traditio an abstract rather than a causal conveyance.

This is also the principal argument against the sufficiency of a putative causa traditionis, for it has very little foundation in the texts. A putative title of usu­capion was ordinarily insufficient, though some had held it sufficient in the high classical age.³⁵ The limitations upon this principle are discussed at length and in detail in our surviving texts, though it is Justinian’s compilers rather than Gaius who inform us that “error autem falsae causae usucapionem non parit”.³⁶ It is assumed without discussion in a number of passages that property passes by delivery though the cause which the parties believed to exist did not exist in fact, but whether a putative causa traditionis may be sufficient is a question which is entered upon the Cornelian, I do not acquire possession unless it should happen that we are mis­taken only in the name but agreed upon the thing”.]

³⁵ D. 41.3.27 (Ulpian 31 ad Sab.): “Celsus libro trigensimo quarto errare eos ait, qui existimarent, cuius rei quisque bona fide adeptus sit possessionem, pro suo usucapere eum posse: nihil referre, emerit necne, donatum sit necne, si modo emptum vel donatum sibi existimaverit, quia neque pro legato neque pro donato neque pro dote usucapio valeat, si nulla donatio, nulla dos, nullum lega­tum sit.” [“Celsus in his thirty-fourth book says that they are mistaken who thought that any man may acquire a thing of which he has obtained possession in good faith by usucapion pro suo, and that it is immaterial whether he bought or not, or whether it were given him or not, provided that he thought that he had bought it or that it had been given, for neither usucapion as a legacy or as a gift or as dowry is valid if there be no gift, no dowry, or no legacy”.] It is hardly necessary to state that an opinion which has no supporters is erroneous, and whatever (if anything) the compilers have done to the text, they would hardly have been at pains to invent an opinion merely to disap­prove it.

³⁶ Inst. 2.6.11.

left not merely unanswered but unasked. That the compilers have so diligently suppressed the classical discussions that no trace of them remains is a somewhat desperate argument in the absence of affirmative evidence that the classical jurists held a putative cause insufficient. Pomponius appears to have shared Accursius’s opinion that the whole title De condictione indebiti is devoted to putative cause, and if Paul contrived to avoid admitting it, that property passed by the payment of an indebitum had been settled long before the third century, even if it be legitimate to argue from causa usucapionis to causa traditionis. If, in the result, we must hold that traditio was an abstract conveyance sub specie aeternitatis, since the cause was no more than evidence of the intention of the parties, it does not necessarily follow that the classical jurists would have agreed. The modern controversies upon the cause of a contract may serve as evi­dence that whether a cause is a redundant concept is a question upon which there may be room for more than one opinion, and that Ulpian disagreed with Julian, though somewhat hesitantly, upon a point which the earlier jurist held to be settled law, suggests that in this case again there may have been something of a late classical reaction. Paul’s observation in D. 41.1.31pr, that a bare deliv­ery never passes ownership unless there be a precedent cause, is more emphatic than any earlier surviving text in point. It is one thing to hold that property may pass if the parties believe that there is a cause for the delivery, though the cause does not exist in fact. To hold that property may pass though there is no cause for the delivery and the parties have different causes in mind is to treat the requirement of a cause very cavalierly indeed, and if Ulpian did not altogether approve the laxity of his predecessors, it is understandable that he should stick at this point. That this was apparently the only disputable question suggests that it had been too long established that it was not necessary that a cause which the parties believed to exist should exist in fact for this proposition to be open to direct challenge.