Condictio causa data causa non secuta

The condictio causa data causa non secuta^[4343] derived its special significance from the fact that not every agreement was enforceable in Roman law. There was, as we have seen, a numerus clausus of contracts, among them only four consensual contracts.

Thus, for example, if someone paid another a sum of money in order to make him emancipate a son, manumit a slave, or abandon a lawsuit,^[4344] he had no means of enforcing the counterperformance that he had envisaged. None of these transactions could be classified as a sale, or hire, or partnership, or mandate; nor, of course, did the handing over of the money bring any of the four recognized real contracts into existence. Or take the case of an exchange transaction. If A gave B his sedan chair in order to obtain B's golden bracelet, his expectation might well be disappointed, for B was under no obligation to deliver the bracelet.^[4345] Yet, if he failed to counterperform, B had no right to retain A's performance; after all, the sedan chair had been given to him ob rem, not as a present. "[O]b rem vero datur, ut aliquid sequatur" explained Pomponius and concluded "quo non sequente repctitio competit."^[4346] If, on the other hand, the desired state of affairs had in fact come about (the other party had delivered the bracelet, emancipated the son, manumit­ted the slave, etc.), this right to reclaim the performance fell away: "Si ob rem... data sit pecunia,... causa secuta repetitio cessat."^[4347] Both rules were retained, even when actiones in factum (or praescriptis verbis) began to be granted to the party who had made the first performance, a development from which eventually Justinian's system of innominate real contracts emerged.^[4348] Once he had handed over his sedan chair to B, A could now enforce counterperformance. But he retained the option of claiming back his own performance; for as long as B had not delivered the bracelet, it was still true to say that the state of affairs envisaged by A had not yet come about ("causa non secuta"). Effectively, therefore, the condictio causa data causa non secuta gave A a right of withdrawal from the contract.^[4349] B had it in his hands, however, to terminate this state of pendency and to commit A to the contract, for the rule remained: causa secuta repetitio cessat. Neverthe­less, the continued existence of the condictio^[4350] was bound to undermine the binding character of innominate real contracts; and the remedy was thus destined to play an important role when, in later centuries, the exact confines of the principle of pacta sunt servanda were sought to be established.^[4351]

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