Condictio indebiti

(a) Indebitum solutum

Though ^probably not the oldest of the Roman unjustified enrichment claims,⁹' the condictio indebiti became undoubtedly their most important species.

We have already briefly sketched the function of this remedy; it served to retransfer indebitum solutum. A performance rendered with the object of fulfilling an obligation constituted indebitum solutum, if the obligation did not in fact exist. The transfer of Pamphilus was indebitum solutum if the debtor thought he owed either Pamphilus or Stichus, whereas, however, he actually owed Stichus.^[4368] Where a person was under an alternative obligation (he owed either Stichus or ten), he could reclaim Stichus if he had delivered him without realizing that he could have paid the sum of ten instead.^[4369] Furthermore, the condictio indebiti could also be brought if performance had been made in discharge of a debt which was valid at civil law but defeasible, ex iure praetorio, by an exceptio perpetua-^[4370] A conditional debt remained indebitum, as long as the condition was not satisfied, and whatever had been given to discharge it could, therefore, also be reclaimed.^[4371] An obligatio naturalis, on the other hand, excluded the condictio indebiti; for though he could not have forced the other party to render performance, the creditor had nevertheless received what was owing to him.^[4372] All this is perfectly straightforward.^[4373] Much more obscure are the particulars of the second main requirement of the condictio indebiti: the plaintiff had to have made his performance in the mistaken belief that it was owing."

(b) Solutio per errorem

Questions surrounding this "error" requirement have been the subject of lively debates throughout the history of the ius commune;¹⁰⁰ in fact, one can justly claim that we are dealing here with the single most disputed area of the Roman law of unjustified enrichment.¹⁰¹ Some of the more extreme interpolationists have even denied that error on the part of the person rendering performance was at all required in classical Roman law;¹⁰² even if he knew that what he gave was an indebitum, they claimed, he could demand its retransfer.

Today one is inclined to reject these somewhat ruthless attempts to purge the classical sources—here as in many other contexts—of all subjective elements. Yet, on the other hand, it is also obvious that to some extent the compilers have indeed tampered with the sources that they found; they did not, however, succeed in eradicating all traces of the classical regime. A variety of texts within the Corpus Juris Civilis therefore seem to be in irreconcilable conflict with each other;¹⁰³ and every analysis based upon such unreliable sources must thus of necessity contain some element of speculation. As a result of the research undertaken over the last three or four decades,¹⁰⁴ the following picture, in broad outline, appears to have emerged.

In classical Roman law error on the part of the plaintiff was an essential element of the condictio indebiti. This is confirmed by too many sources to be disputed or explained away. We have already repeatedly referred to the famous passage in Gaius' Institutes in which the condictio indebiti is introduced in the following terms: "Is quoque

® The defendant, incidentally, also had to have acted under the influence of error, for a person who accepted a performance, although he knew that it was not owing to him, committed theft: Scaev. D. 13, 1, 18; Ulp. D. 47, 2, 43 pr. and 1; cf. H.F. Jolowicz, Digest XLVIl. 2. De Furtis (1940), pp. XXV sqq.

^и) Cf. the-detailed analysis by D.P. Visser, Die ml van dwelling by die condictio indebiti (unpublished Dr. iur. thesis, Leiden, 1985), pp. 66 sqq.

For an even more dramatic comment ("one of the most notorious controversies in the field of Roman private law") cf. August Herrmann, "Beitrage zur Lehre vom Irrthum, Erster Beitrag", (1847) 3 (Neue Folge) Zeitschrift Jiir Civilrecht und Prozess 87.

^re Cf., in particular, Siro Solazzi, "L'errore nella 'condictio indebiti' ", in: Scritti di diritto rotnano.

vol. IV (1963), pp. 99 sqq.; idem, "Ancora dell'errore nella 'condictio indebiti' ", in: Scritti. vol. IV (1963), pp. 405 sqq.; idem, "Le 'condictiones' e l'errore", in: Scritti. vol. V (1972), pp. 1 sqq.

^B Cf, for example, C 4, 5, 5 compared with C. 1, 18, 10 (both by Diocl. et Max., the one text from a.d. 293, the other from a.d. 294.).

^IW Cf. Schwarz, Condictio. pp. 17 sqq., 65 sqq.; Sven Erik Wunner, "Der Begriff causa und der Tatbestand der condictio indebiti", (1970) 9 Romanitas 463 sqq.; Harald Koch, Bereicherung und Irrtum (1973), pp. 105 sqq.; Laurens C. Winkel, Error iuris nocet— Rechtsdwaling ah rechtsordeprobkem (1982), pp. 189 sqq.; H. Gaspart-Jones, "La 'condictio indebiti' et l'erreur dans le droit de Justinien", in: Hommage a Rene Dekkers (1982), pp. 93 sqq.; Visser, op. cit., note 100, pp. 22 sqq.; idem, "Die grondslag van die condictio indebiti", (1988) 51 THRHR492 sqq.; De Vos, Verrykingsaampreeklikheid. pp. 24 sqq. qui non debitum accepit ab eo qui per errorem solvit, re obligatur."^{^[4374]} ^{^[4375] ^[4376]} At the very outset of the Digest title 12, 6 this is confirmed by a fragment taken from Ulpian's commentary on the edict: "Et quidem si quis indebitum ignorans solvit, per hanc actionem condicere potest: sed si sciens se non debere solvit, cessat repetitio. "^{1()an error of fact was typically excusable, whereas an error of law was not.¹¹³ Thus, we now come across statements like the one contained in C. 1, 18, 10:}

"Cum quis ius ignorans indebitam pecuniam persolverit, cessat repetitio. per ignorantiam enim facti tantum repetitionem indebiti soluti competere tibi notum est."

But some adjustments continued to be made at both ends of the spectrum. At least for certain groups of persons even an error iuris was regarded as excusable, and likewise even an error facti could sometimes be taken to be inexcusable.^[4384]

What was the function of the error requirement, as far as the condictio indebiti was concerned? A man who gave something in the knowledge that he was not bound to do so did not deserve to be protected if he decided to reclaim this object, after all.

He appeared more like someone who had executed a donation;^[4385] and a donation, as we know,^[4386] could not be reclaimed either. In both instances, it was rather the recipient who could reasonably ask to be protected, for both solvens and donor had engendered in him the expectation that he might keep what he was given. On balance, this interest had to prevail against that of the other party to still be able to change his mind. Or, to put it slightly differently: in the absence of a good reason to grant a claim, the policy of the law was always quieta non movere.^[4387] Justinian's distinction between error iuris and error facti, of course, added another facet to the ratio legis: the general public was required to know the law, and exclusion of the condictio indebiti in case of error iuris was regarded as a suitable way of sanctioning this duty.

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

Condictio indebiti

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