1. Aequitas naturalis and the lex Si et me et Titium

It was, however, not only through their analysis of the various condictiones that the lawyers of the ius commune worked towards the modern generalized law of unjustified enrichment.

A "seductive idea"^[4466] such as the prohibition of unjust enrichment was bound to shape the solution of a whole range of problems other than those eventually compiled in titles 12, 4-7 of the Digest or the equivalent subsections of the Code. The evidence for this was scattered throughout the Corpus Juris and no part of it missed the enquiring eyes of legal geologists"^[4467] who started digging in the Middle Ages. One of the first, and most notable, finds in this huge quarry was, of course, the general equitable principle enunciated by Pomponius: "... hoc natura aequum est neminem cum alterius detrimento fieri locupletiorem." The mere fact that it had been elevated by the compilers to the status of a regula iuris antiqui, and as such had been included in the final Digest title^[4468] indicated to the medieval lawyers that its influence extended far beyond the condictiones. They realized that it did not contain a noncommittal theoretical statement on natural law or equity, but that it constituted, instead, a formative force behind a variety of rules and institutions of the positive law.^[4469] On the other hand, however, they were too faithful to the sources to convert it into a rule of positive jurisprudence in its own right and thus to start exploiting its conceivably rather explosive potential. Primarily, therefore, they saw their task in listing both emanations and limitations of the principle as far as they could find them in the Corpus juris.^[4470] This very process, however, brought to light apparent contradictions and discrepancies, which had to be resolved; and it was usually in the unravelling of these puzzling details that recourse was had to aequitas naturalis, aequitas generalis, and the like.^[4471] ^{^[4472] A particularly important part was played, in this context, by the so-called lex Si et me et Titium,²⁴ⁿ a text in which Celsus himself appeared to have derived the right to (re-)claim directly from the precepts of good faith and equity. D.
12, 1, 32 concerns what may be referred to as third-party enrichment, the most notoriously difficult of all enrichment constellations:^[4473] C (in terms of our discussion above)^[4474] has been enriched on account of the fact that B has transferred to him, sine causa, what he (B) owed to A. Obviously, this precedent could not be used for too ambitious generalizations, for there was always the negotium requirement of the lex Si in area^[4475] that had to be kept in mind.^[4476] Yet, some extension was permissible and thus the medieval lawyers were prepared to consider favourably the position of a person who had lent some money to a pauper. The pauper, before falling insolvent, had used the money to buy food tor his sons, who, in turn, subsequently inherited their mother's estate. The remedy against the insolvent father being without any value, the lender was allowed to proceed "contra ipsos filios habentes forte res maternas, ex aequitate huius legis [sc: D. 12, 1, 32]".^[4477] This solution might, at first glance, appear to be in conflict with D. 12, 6, 49 (the lex His solis),^[4478] ^{^[4479] ^[4480] ^[4481] where Modestinus made it clear that the condictio was available only against those to whom payment had been made and not against those who had benefited from such payment. The necessary reconciliation was achieved on the basis that the lex His solis was taken to pertain only to those cases where the recipient of the performance had not become i 247
insolvent.
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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

1. Aequitas naturalis and the lex Si et me et Titium

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