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, which, in turn, derived its specific significance from the fact that the range of consensual contracts was strictly limited.

This right to ask for restitution, causa non secuta, already lost its absolutely essential character with the rise of the actiones praescriptis verbis:^{[4410] [4411]' 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:}

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(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 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

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

® "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."

^H D. 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 (19591. pp. 160 sqq.; D.E.C. Yale, "Celsus: Sale and Conditional Gift", in: Studies De Zulueta. pp. 171 sqq.

^E Cf, 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.

^B Cf., today, still § 815 BGB; infra, note 175. impossibility doctrine.^[4412] 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.

(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.^{[4416] [4417] It was, of course, the ascendancy of the notion that every ("naked") pact begets an action (ex nudo pacto oritur actio)1119 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.}

. cumjure canonico et moribus nostris nuda pacta eandem, quam stipulationes, vim habeant,... ideo hodie ex quolibet contractu innominato efficax actio oritur, quae etiam re Integra poenitentiam excludit, nisi aliud actum appareat."^[4419]

Furthermore, the condictio causa data causa non secuta in the narrower sense (ratione cessationis causae) had lost its main field of application. "Hodie [haecj condictio rara est", acknowledged Stryk,^[4420] and it is easy enough to see why that was so. If someone performs in order to receive a counterperformance, the parties will usually have concluded a contract. The first performance can then not be classified as a datio ob rem but occurs solvendi causa. If, on the other hand, the parties have not reached a contractual agreement, the reason for this will often lie in the fact that the purpose of the performance was not communicated to the recipient: in which case we are not dealing with a datio ob rem but merely with a unilateral motive that is irrelevant in law.^{[4421] [4422] [4423] Thus it is only in a very small range of situations that the condictio causa data causa non secuta remains applicable:174175 situations, essentially, in which the parties have come to some kind of arrangement that does not have the quality of an obligatory contract. One may think here of cases in which the parties cannot, or do not wish to, bind the recipient of the first performance: as, for example, where a person receives something in order to marry the giver[4424] or to institute him as his heir, to adopt a child or to donate blood (in all these cases a contractual obligation on the part of the recipient would be frowned upon), where the performance is supposed to induce the other party to accompany the giver on a trip abroad[4425] or to play a game of chess with him (such arrangements are usually not intended to leave the purely social level). Payment of part of a purchase price in the expectation that a contract of sale is going to be concluded may also be regarded as a datio ob rem;[4426] if the contract does not subsequently come into existence, the condictio causa data causa non secuta is also still available.[4427]}

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