Condictio indebiti

(a) Function and range of application

If the condictiones causa data causa non secuta and ob turpem vel iniustam causam dwindled in importance, the condictio indebiti went from strength to strength.

One important development favouring its prospects was the gradual recognition of the principle of ex nudo pacto oritur actio. If every agreement gave rise to a binding contract, performance was made, more often than not, solvendi causa: in order to discharge an already existing obligation; and where such an obligation subsequently turned out not to have existed after all,

dealing with acts in fraudem crcditoris and with the position ot the mala fide possessor. For Roman antecedents of the maxim, cf. Ulp. D. 50. 17, 134, 1 ("Nemo ex suo delicto meliorem suam condicioncm facere potest") and Ulp. D. 50, 17. 161. On "nemo auditur turpitudinem suani allegans" in the usus modernus, see the disputatio "De allegationc propriae turpitudinis", in: Samuel Stryk, Opera, vol. XI (Florentiac, 1840), Disputat. XVII; for a modern comparative analysis, see Hubert Niederländer, "Nemo turpitudinem suam allegans auditur—Ein rechtsvergleichender Versuch", in: Ins et Lex, Festgabe fur Max GnUwiUer (1959), pp. 621 sqq.

™⁷ Jajbhay v. Cassia. 1939 AD 537 at 550.

^{1remained an essential prerequisite for this type of claim. All details as to what exactly that implied were, however, endlessly disputed. The main controversy raged over the problem of how to deal with error iuris. "Cum quis ius ignorans indebitam pecuniam persolverit, cessat repetitio":'⁰³ the emperors Diocletian and Maximian could hardly have given a clearer expression to their view that a mere error iuris excluded the condictio. Yet, on the other hand, the Digest contains a statement by Papinian to the effect that, while a mistake of law does not benefit those who wish to acquire, it does not prejudice those who sue for what is theirs.²⁰⁴ The plaintiff under a condictio indebiti clearly claimed back what should have remained his; he did not intend to make a gain, but attempted to prevent a permanent (unjustified) diminution of his assets.}

Consequently, an error iuris should not be taken to prejudice his chances of success. The authors of the ius commune were thus faced with a dilemma. Having to apply the Corpus Juris Civilis as it stood, it would have been of little concern for them to know that the one text represented Justinianic law, whereas the other one reflected the view held by the classical jurists. They had somehow to harmonize the sources. In century after century ever more refined distinctions were drawn.²⁰⁵ Majority support, broadly speaking, oscillated between two different points of view.

"Veteres omnes fere... ita rem hanc explicant, ut concludant, hanc Constitutionem [scil. C. 1, 18, 10] accipiendam non esse de omni indebito soluto iuris ignorantiam, sed de indebito civiliter, debito autem naturaliter. "^2/* ^[4435] ^{^[4436] ^[4437] ^[4438] ^[4439] ^[4440] ^[4441] ^[4442] ^[4443] ^[4444] ^[4445]}

This was the basic tenet of the one opinion.²⁰⁷ The principle of error iuris nocet was to be confined to cases where the plaintiff had honoured an obligatio naturalis; if he had wrongly assumed that his performance was not only naturaliter but also civiliter debitum, he could not demand its retransfer. If, however, he had given what he owed neither civiliter nor naturaliter, he could bring the condictio indebiti irrespective of whether his mistake had been one of fact or law:

"Caeterum, si nee civiliter nee naturaliter sit debitor, et solvent, repetere id potest, nc damnum sentiat omissionis pecuniae suae contra sententiam Papiniani."²™

Proponents of the other major line of argument²⁰⁹ embraced the principle of C 1, 18, 10, and with it the division between error facti and error iuris, much less equivocally. Error iuris nocet, whilst error facti non nocet, they claimed.

Of Pap. D. 22, 6, 7 they made rather short shrift. "Iuris ignorantia... suum... petentibus non nocet" were the words used by Papinian; but since a person proceeding under a condictio indebiti had lost his ownership and was not reclaiming what belonged to him but merely what was owed to him, this passage did not actually apply to the present type of situation:

"... non cnim hie de rei suae petitione qucscio est, cum secundum ante dicta is, qui solvit, dominus esse desierit, ac condictione indebiti non mum repetat, sed sibi debitum ex quasi contractu."²¹¹¹

By the time of the usus modernus pandectarum both points of view still found support, though the balance was shifting increasingly towards the latter.²¹

id) Ignorantia vincibilis and invincibilis

At the same time, however, a third solution began to be aired. "Ego certe neminem adhuc vidi, qui pugnantes in hac juris parte invicem ^[4446] ^{^[4447] ^[4448] ^[4449] ^[4450] ^[4451] ^[4452] ^[4453] ^[4454] ^[4455] ^[4456] ^[4457]}

leges satis conciliarit", declared Augustin Leyser,²¹² taking stock of 500 years of doctrinal dispute. "Quae quum ita sint", he concluded, "alium fontem, ex quo decisio dubiorum circa doctrinam de ignorantia et errore emergentium hauriatur investigari oportebit." The source of inspiration that he had in mind was "recta ratio", and it induced him to cut the Gordian knot by distinguishing between ignorantia vincibilis (surmountable and hence unreasonable or inexcusable)²¹³ and invinci- bilis. Excusability of the mistake as a general criterion to determine whether or not to grant the condictio indebiti quickly gained ascendancy among the 19th-century pandectists, though not, of course, merely on the basis of "sound reason". General statements such as those contained in C.

1, 18, 10 or D. 22, 6, 7, it was now argued,²¹⁴ could not be seen as absolute and rigid legal rules; they provided no more than guidelines that had to be interpreted in the light of a whole range of qualifications which could emerge from the decisions of specific cases.²¹⁵ The consequence was not a complete rejection of the error iuris/error facti dichotomy, but merely its relegation to a secondary place. For even if excusability (or reasonableness) now appeared to commend itself as the principal criterion that was bound, to a certain extent, to cut across all the established distinctions, it could still be maintained that errores facti, as a rule, were excusable, whereas errores iuris, by and large, were not. Yet, legal certainty was seriously jeopardized. An error of law could, after all, sometimes be regarded as reasonable, an error of fact as unreasonable; certain presumptions were sometimes applied and at other times rejected in this regard, and the whole issue eventually got entangled in an inordinate amount of casuistry.²¹⁶ When the BGB was drafted, its compilers were therefore determined to reform the law. Error iuris and error facti were placed on a par and the excusability criterion abolished. Moreover, error was dropped as a specific requirement of the condictio indebiti; instead, the onus was now placed on the defendant to show that the plaintiff had known, at the time of rendering performance, about the absence of an

Meditationes ad Pandectas, Spec. CCLXXXIX, I and II.

²⁰ "Illam [sc: ignorantiam vincibilem] vocamus, quam quis, adhibita attentione et diligentia debita, discutere potuisset; hanc [sc; ignorantiam invicibilem], quae admota licet omni cura, quam vitae communis ratio et personarum conditio fert, dispelli nequivisset" (Leyser, loc. cit.).

Cf., in particular, Vangerow, Pandekten, § 625, Anm 1; cf. also § 83, Anm 1, V; further: Windscheid/Kipp, § 426, 3; Dernburg, Pandekten, vol. II, § 141, 3; also already Savigny, System vol. Ill, pp. 447 sqq. (on Pap. D. 22, 6, 7, cf. pp. 346 sqq.); and see the analyses by Koch, op. cit., note 104, pp. 119 sqq.; Visser, op. cit., note 100, pp. 190 sqq. ²¹ Likewise, the common-law rule that excludes recovery of money paid under a mistake of law (cf, supra, note 113) has, in the course of time, been considerably watered down. Cf. Goff and Jones, Restitution, pp. 90 sqq. (claiming that "[fjew subjects are more confused"); Birks, Restitution, pp. 164 sqq.; and, for a comparative analysis, Zweigert/ Kotz, pp. 299

Konig, Bereicherung, pp. 33, 40 sq.

obligation.^[4458] ^{^[4459] ^[4460] ^[4461] ^[4462] ^[4463] Without realizing it, the legislator had thus come close to the position that had once prevailed in classical Roman law.}

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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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