Condictio pretii

Yet, if that would have been the end of the matter, he would have been left with a comfortable—and quite undeserved—gain: he was no longer exposed to a condictio and could at the same time keep the purchase price he had received from the third party, where the object had ultimately perished.

"Si cum scrvum, qui tibi Icgatus sit, quasi mihi legatum posscdenm et vendiderim, mortuo eo posse tc mihi prctium condiccrc lulianus ait, quasi ex re tua locupletior factus sim":³⁴'¹

the new claim was still referred to as condictio and it was obviously based on the idea of a surrogation. If this solution commended itself in cases where the object sold had been destroyed, it was also, arguably, appropriate if the object still existed. Whether the one or the other was the case, was, from the point of view of the relationship between plaintiff and defendant, entirely accidental. Why then should the practical result be different? Or, to put it slightly differently: why should the condictio pretii be a suitable device only to establish, and not also to limit, the defendant's liability? Whether the object in question

Cf. supra, pp. 687 sqq.

Paul. I). 45. 1. 91. 3:. quotiens culpa intcrvenit debitoris. pcrpetuari

obligationcm." For further details, sec supra, pp. 786 sq., 791 sq. An enrichment debtor cannot, however, normally have been held responsible for the event preventing him from honouring his obligation in just the same way as a promisor; for it can hardly be expected of him to be aware of his obligation to make restitution (and thus to adjust his behaviour accordingly) to the same extent as this can be expected ot a person who has promised, say, to convey a slave. If he was actually aware of the fact that he received indebitum, he committed theft (cf.

³⁹⁵ Afr. D. 12. 1. 23.

was ultimately destroyed or not: in both cases the defendant no longer had the object in his property, but had, instead, received the price; and hence it was the price for which he should be liable, rather than either for the (full) value of the object or, alternatively, for nothing. This is how the Roman lawyers may have argued, for in a famous and much- debated fragment Ulpian, indeed, appears to have confined the plaintiffs claim to the purchase price (which is specifically stated to have been rather small), although the slave that the defendant had originally received is not reported to have died:

. et intcrdum licet aliud pracstemus, inquit, aliud condidmus: ut puta... hominem indebitum [dedij, et hunc sine fraude modico distraxisti, nempc hoc solum refundcre debes, quod ex prctio habes."³"⁷

"Quod ex pretio habes" here does not mean "what you have left from the price"^{3 8} but "what you have received as price",³⁹⁹ and Ulp. D. 12, 6, 26s 12 can therefore not be taken to have determined the content of enrichment condictiones, on a gliding scale, according to the enrichment still extant at the time of litis contestatio.⁴⁰⁰

5.