Condemnatio pecuniaria and specific performance under Justinian

Justinian, the great champion and restorer of classical Roman private law, did not resuscitate the structure and principles of the formulae procedure. In that regard he usually accepted and consolidated the policy of his predecessors.¹⁶⁸ Thus it is obvious that he did not revert to the principle of omnis condemnatio pecuniaria.

"[H]aec sententia generalis cst ct ad omnia, sive interdicta sive actiones in rem sivc in personam sunt, ex quibus arbitratu indicis quid restituitur, locum habet."^[3962]

Strictly speaking, however, this passage deals only with claims directed at a restitutio. Read in conjunction with a variety of other texts scattered throughout the Corpus Juris, it rather leads one to the conclusion that the principle of specific performance was restricted to dare (and reddere) obligations.^[3963] Both where a praestare and a facere was owed, Justinian may well be seen to have retained (or reverted to) the principle of the condemnatio pecuniaria. How else can one interpret the fact that he incorporated the following statement of Ulpian referring to the actio empti (that is, the practically most important praestare obligation) into the Digest: "Si res vendita non tradatur, in id quod interest agitur, hoc est quod rem habere interest emptoris"?^[3964] And as far as those cases were concerned where the debtor was bound to do something (facere), we have a very clear and generally worded testimony in D. 42, 1, 13, 1:.. quia non facit quod promisit, in

pecuniam numeratam condemnatur, sicut evenit in omnibus faciendi obligationibus."^{[3965] [3966] [3967] All in all, the Corpus Juris provides a somewhat patchy picture and leaves it open to considerable doubt how far the principle of specific performance had in actual practice been substituted for that of omnis condemnatio pecuniaria.}

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