Condictio ob turpem (vel iniustam) causam

(a) Turpitudo accipientis dumtaxat

We have been proceeding from the tacit assumption that what the plaintiff sought to recover had been handed over for an honest purpose (datio ob rem honestam).

If the performance had been such that its acceptance offended the traditional standards of honest and moral behaviour (datio ob turpem causam), the condictio ob turpem causam was applicable. It lay, for instance,^[4352] against a person who had accepted money in order not to commit a crime ("... dedi tibi ne sacrilegium facias, ne furtum, ne hominem occides")^[4353] or in order to do what he was obliged to do in any event ("... si tibi dedero, ut rem mihi reddas depositam apud te").^[4354] The payment of a ransom to a kidnapper would be another case in point. Extortionary practices of this kind could, of course, not be condoned, and thus the transfer of the money could hardly be sanctioned by the legal system.^[4355] As long as, in spite of the payment, the desired result did not ensue (the crime was nevertheless committed, the deposit still not given back, the hostage not released) it would not even have been necessary to introduce a new type of enrichment action; the condictio causa data causa non secuta would have done the job. The point about the condictio ob turpem causam was that it could also be used if the purpose for which the money had been given had in fact been accomplished (causa data causa secuta, so to speak).^[4356] For even if the recipient did abstain from killing (to mention just the one example), this could by no means earn him the right to keep the money that he had extorted. Generally speaking, as one can see from the scarcity of case law reported in the Corpus Juris, the ambit of this particular enrichment claim was rather restricted. It was a subcategory of the condictio causa data causa non secuta, in that it also required a datio ob rem; yet, its success did not depend on the further requirement of "causa non secuta", but merely on the infringement of the boni mores on the part of the recipient.

Justinian also allowed the recovery of dationcs ob iniustam (as opposed to turpem) causam;^[4357] he did not, however, thereby substantially widen the scope of application of the remedy.^[4358]

(b) Turpitudo utriusque

The range of cases in which a plaintiff could successfully bring the condictio ob turpem causam was further reduced by virtue of the famous "in pari turpitudine" rule. Where both the giver and the recipient had been guilty of morally reprehensible behaviour, there was no reason for the law to intervene. For though the recipient might not deserve what had been handed over to him, the giver does not deserve to be protected either. Under these circumstances, it is preferable to leave things as they are, rather than to assist one villain in his claim against the other; for in order to succeed, a plaintiff must always be able to demonstrate a better right than the defendant.^[4359] This perception found its expression in the rule that where both parties are tainted by the evil, the position of the possessor is to be regarded as the stronger one:.. si et dantis et accipientis turpis causa [est], possessorem

potiorem esse'¹;^[4360] °^r- ^as it ^was usually expressed in later centuries: in pari turpitudine-melior est causa possidentis. It was applied in a variety of cases involving crime and grave infringements of the moral code;^[4361] mere illegality of the transfer that could not at the same time be qualified as "turpis", was not sufficient. Thus, for example, recovery was excluded where someone had given money ob stuprum (for illicit sexual intercourse)^[4362] or, according to some older authors, where a person had paid a prostitute.^[4363] The same applied where a thief had paid another in order to avoid being given away by him ("si dederit fur, ne proderetur")^[4364] or where someone bribed a judge in order to pervert the course of justice ("si pecunia detur, ut male iudicetur").^[4365] If, on the other hand, judgment had to be given in favour of the person who had paid the bribe anyway ("si dedi, ut secundum me in bona causa iudex pronuntiaret"),⁸⁵ the solution was less clear.

Traditionally, the condictio seems to have been granted in this case, presumably because the giver was regarded as less blameworthy than the judge, who accepted the money for doing what it was, in any event, his duty to do. An imperial constitution was required to decide that the giver, too, had committed an offence that was serious enough to warrant exclusion of the condictio ("... sed hie quoque crimen contrahit (iudicem enim corrumpere videtur) et non ita pridem imperator nostcr constituit litem enim perdere").⁸⁽¹ Particularly interesting about the former of these two views is the fact that thejurists do not seem to have hesitated to evaluate and compare the degree of turpitude of both parties involved in the transaction and to decide in favour of the party who was less to blame.⁸⁷ A similarly flexible approach to the in pari turpitudine rule appears to have prevailed in other cases. Thus, we hear of a woman who intended to marry her uncle and therefore gave him money as a dowry. The marriage (which eventually did not occur) would have had to be classified as incestuous; and since incest was regarded as a case of stuprum, the dowry had been given, strictly speaking, ob rem turpem. Nevertheless, Papinian allowed the woman to reclaim her money, for her behaviour was rather less obnoxious than that of most other persons who paid ob stuprum ("... non enim stupri, sed matrimonii gratia datam esse").⁸⁸

The evil may taint the recipient alone ("turpitudo accipientis dumtaxat"; consequence: condictio ob turpem causam) or it may affect both the giver and the recipient ("turpitudo utriusque"; consequence (normally): no enrichment action). But, of course, it could also be only the giver who had infringed the boni mores ("turpitudo solius dantis'¹).⁸⁹ Such was the case, according to a strong body of opinion, where money was given to a prostitute. Traditionally, the condictio had been excluded on account of turpitudo utriusque;¹-[4366] ^[4367]' now ("nova ratione") it was held that only the giver was tainted. Reason: the recipient could only be blamed for being a prostitute; but being one, it was hardly fair to label the receipt of the money as turpis.⁹¹

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

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