Condictio sine causa

(a) Condictio sine causa specialis

The condictio sine causa remained ianus-faced and enigmatic.²¹⁸ Johannes Voet described its two functions in the following terms:

"Et vel generalis est vel specialis: generalis, quae cum aliis condictionibus concurrere potest, veluti condictio indebiti, causa data, causa non secuta, ob turpem injustamve causam, aliisque similibus: cum utique his omnibus in casibus res merito dici possit sine causa penes possidentem esse...; [s]pecialis sine causa condictio est, quae tune locum habet, cum aliis actionibus locus non est."²¹⁴

This subdivision into a general and a special condictio sine causa represented the prevailing doctrine of the ius commune.²²⁰ Its "special" variety was the rag-picker among the condictiones: it served to gather all instances of an unjustified retention that did not fit into one of the established categories of enrichment liability, There was no other common denominator for this hotchpotch of cases than the fact that one person had somehow or other (that is, by transfer or otherwise) acquired something which he now appeared to retain without cause.

"[S]i causa, quae initio erat, postea casu aliquo desiit esse"²²¹ was one such case; initially there was a causa for the transfer, but it subsequently fell away. This particular species of a condictio sine causa was occasionally even elevated to the status of a specific, "nominate" enrichment claim in its own right.²²² Apart from that we find, for example, the cases of the ring that had been given as an arrha and was still kept, "precio ac re solutis", by the vendor, or of the promissory note "quod soluto debito penes creditorem sine causa manet".²²³ Of particular importance, at least in the light of modern discussions, were those situations where the acquisition had not come about by way of transfer but, for example, "vi fluminum",²²⁴ or as a result of specificatio or consumptio.²²⁵ Among two of the leading luminaries of 19th-century legal science there was a lively dispute about whether a bona fide possessor was liable, on the basis of the Roman sources, under a condictio sine causa if he consumed or sold somebody else's object (and thus encroached upon his ownership).²²⁶

(b) Condictio sine causa generalis

The condictio sine causa generalis, on the other hand, was available whenever any of the other enrichment condictiones could also be brought: it "concurred" with them.²²⁷ As such, in a way, it was a rather meaningless institution and was consequently dropped by quite a few of the writers of the ius commune.²²⁸ Yet Lauterbach (who, in turn, emphasized the condictio sine causa generalis at the expense of its more special sidekick) noted an important point when he wrote: "Nam causa honesta non secuta, aut turpis, vel injusta, aut erronea, quoad hanc actionem, habetur pro nulla.

"^22y "Sine causa" may thus be seen as a common denominator for the whole range of Roman enrichment condictiones,²³⁰ and as such it presented itself as a suitable starting point for streamlining the law of unjustified enrichment. Rather than eliminate the condictio sine causa generalis as redundant, one could abandon the system of the "nominate" condictiones, haphazard as it now («with the recognition, at long last, of ex nudo pacto oritur actio) appeared to be. This is exactly what Friedrich Carl von Savigny proposed to do. Examining the multitude of Roman condictiones on a "historical" basis—from the condictio ex mutuo, which was, to him, the paradigm, via all those other cases where the enrichment had come about as a result of a "datio", down to the instances (often previously overlooked!) of an enrichment arising from the defendant's own act or from accidental circumstances²³¹—he came to the conclusion that the true basis of all of them consists in claiming something back which has come from the plaintiff's property. Their common feature, he proclaimed, was the enlargement of the assets of one party by way of diminution of the assets of another, leading to a state of unjustified

²²¹¹ Bernhard Windscheid, "Zwei Fragen aus der Lehre von der Verpflichtung wegen ungerechtfertigter Bereicherung", in: Gesammelte Reden und Abkandlutigen" (1904), pp. 301 sqq.; contra: Rudolf von Jhering, "Ist der ehemalige gutgläubige Besitzer einer tremden Sache verpflichtet, nach deren Untergang dem Eigenthiimer derselben den gelosten Kaufpreis herauszugeben?" (1878) \6JhJb 230 sqq.; cf. also Windscheid/Kipp, § 422; Konig, Bereicherung, pp. 157 sqq.

""⁷ Cf., for example, gl. Est et haec species ad I). 12, 7, 1: "Ipsa tarnen gcneralissima est. nam concurrit fere cum omnibus aliis...."

__// (-p.. j_{or cxam}p]_c.

Stryk. Usus mvdertius pandectarum. Lib. XR Tit. VII; Glück, vol. 13, pp. 183 sqq.; Reinhard, "Zur Lehre von der condictio sine causa", (1846) 29 Archiv für die civilistische Praxis 233 sqq.

” Collegium thcoretico-practicum. Lib. XII. Tit. VII. V.

²³⁽¹ Cf. also, as far as the condictio indebiti is concerned, Visser, (1988) 51 THRHR 498

- ' System, vol. V, pp. 5(13 sqq. Savigny's theory is analysed by Jan Wilhelm, Rechtsverletzung und Vertnogt'iisetitscheidung ah Grundlagen und Grenzen des Aiisprudis aus ungerechtfertigter Bereicherung (19731. pp. 19 sqq.; cf. also Hammen. Savigny. pp. 187 sqq.

"habere"; unjustified, because a legal basis (a causa) for this shift of assets had either not existed in the first place or had subsequently fallen away.^[4464] In the case of the condictiones indebiti and ob causam finitam, for example, this causa was obviously the underlying obligatory act. Savigny's lucid exposition marked the birth of the famous German general enrichment action. It gained widespread recognition in 19th- century legal doctrine^[4465] and was, most importantly, eventually also received into the BGB.

IV.

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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 sine causa

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