DE CONDICTIONE CAUSA DATA CAUSA NON SECUTA.

³ Sc. in the testament.

⁴ The law always favours liberty, and therefore in the present case will not allow the statuliber to be defrauded of his freedom. The con­dition, which he is unable to fulfil because of the heir’s prohibition, is treated as fulfilled, in accordance with the general principle “jure ci­vili receptum est quoties per eum, cujus interest conditionem (non) im­pleri, fit quominus impleatur, ut per­inde habeatur ac si impleta conditio fuisset.” D. 35. 1. 24. Compare D.

nummi non peribunt, sed is, quem testator accipere uoluit, aduersus heredem in factum actione agere potest, ut testatori pareatur.

4. Idem libro trigensimo nono ad edictum. Si quis ac­cepto tulerit debitori suo, cum conueniret ut expromissorem daret, nec ille det, potest dici condici posse ei qui accepto sit liberatus.

5. Idem libro secundo disputationum. Si pecuniam ideo acceperis, ut Capuam eas, deinde parato tibi ad proficiscendum condicio temporis uel ualetudinis impedimento fuerit, quo minus proficiscereris, an condici possit, uidendum : et cum per te non steterit, potest dici repetitionem cessare: sed cum liceat poenitere ei qui dedit, procul dubio repetetur id quod datum est, nisi forte tua intersit non accepisse te ob hanc But the person to whom the testator wished it to be given can proceed against the heir by actio in factum, that the testator’s wish may be carried into effect.

4. Ulpian. When a man has given an acceptilation to his debtor in consideration of his agreement to provide an expromissor, and he does not provide one, we may lay down that he who was released by acceptilation is liable to a con- diction¹.

5. Ulpian. If you have received money to undertake a journey to Capua, and when you were prepared to set out, the state of the weather or of your health prevented you from starting, we must consider whether there can be a condiction : and since it was not your fault, it may be said that recovery is barred ; but as the donor has the right to change his mind, it is clear that what was given can be recovered, unless perchance it would have been better for you not to have received money causam pecuniam, nam si ita se res habeat, ut, licet nondum profectus sis, ita tamen rem composueris, ut necesse habeas proficisci, uel sumptus, qui necessarii fuerunt ad profectionem, iam fecisti, ut manifestum sit te plus forte quam accepisti erogasse, condictio cessabit: sed si minus erogatum sit, con­dictio locum habebit, ita tamen, ut indemnitas tibi praestetur eius quod expendisti, (r.) Si seruum quis tradiderit alicui ita, ut ab eo intra certum tempus manumitteretur, si poenituerit eum qui tradiderit et super hoc eum certiorauerit et fuerit manu­missus post poenitentiam, attamen actio propter poenitentiam competit ei qui dedit, plane si non manumiserit, constitutio succedit facitque eum liberum, si nondum poenituerat eum qui in hoc dedit. (2.) Item si quis dederit Titio decem, ut seruum emat et manumittat, deinde poeniteat, si quidem nondum

35. i. 8i. i: “tunc demum pro im­pleta habetur conditio, quum per eum stat qui, si impleta esset, debi­turus erat,” and D. 50. 17. 39: “in omnibus causis pro facto accipitur id in quo per alium mora sit quo­minus fiat.”

¹ The condiction allowed is not a condiction on the original stipula­tion ; for that has been destroyed by the acceptilation : but the condiction granted is one causa data causa non

secuta, to revoke the acceptilation. Then, the parties being under the original· contract, a condictio certi can be brought, if the stipulation is not carried into effect. This ex­planation accords with what Bar- tolus says : “si causa propter quam debitor liberatur non impletur, agitur ut in pristinam obligationem reponatur.” To this view Gotho- fred assents.

on this account. For if the state of the case is that although you had not started, you had nevertheless made arrangements which caused your journey to be a necessity, or had already incurred expenses necessary to your setting forth, so that it is clear that you had spent more perhaps than you had received, the condiction cannot be brought; but if a smaller amount has been spent the condiction will be allowed, provided only that you are indemnified for what you have spent. 1. Supposing any one has delivered a slave to another on the understanding that he was to be manumitted within a certain time, if the one who delivered the slave has changed his mind and notified this to the other¹, and the slave has been manumitted after his change of mind, an action can still be brought by the donor^{[78] [79], because of his change of mind. Obviously, if he has not manumitted him, the Constitution applies[80] and makes the slave free, if the man who gave him for that purpose has not yet changed his mind. 2. So too, if any one has given Titius ten aurei to buy a slave and manumit him, and subsequently}

³ Sc. the Constitution of Marcus (see D. 40. 8), which provided that a slave, alienated in order that he might be manumitted, should become free by operation of law so soon as the time had expired within which the manumission ought to have taken place.

emptus est, poenitentia dabit condictionem, si hoc ei mani­festum fecerit, ne si postea emat, damno adficietur: si uero iam sit emptus, poenitentia non facit iniuriam ei qui redemit, sed pro decem quae accepit ipsum seruum quem emit restituet aut, si ante decississe proponatur, nihil praestabit, si modo per eum factum non est. quod si fugit nec culpa eius contigit qui redemit, nihil praestabit: plane repromittere eum oportet, si in potestatem suam peruenerit, restitutum iri. (3.) Sed si accepit pecuniam ut seruum manumittat, isque fugerit prius quam manu­mittatur, uidendum, an condici possit quod accepit, et si quidem distracturus erat hunc seruum et propter hoc non dis­traxit, quod acceperat ut manumittat, non oportet ei condici: plane cauebit, ut, si in potestatem suam peruenerit seruus, restituat id quod accepit eo minus, quo uilior senius factus est propter fugam, plane si adhuc eum manumitti uelit is qui changes his mind, the change of mind will give ground for a condiction, if the slave has not yet been bought; provided he made it known to the other, to prevent him from incurring loss by purchasing the slave afterwards ; but if he has been already bought, the change of mind does no injury to the purchaser, but instead of (returning) the ten aurei which he received,, he will deliver up the slave whom he bought, or, if we suppose the slave to be dead previously, he will pay nothing; provided only the death was not through his fault. And if the slave has run away, and this has happened through no fault of the purchaser, the latter will pay nothing; though he ought certainly to undertake that he shall be handed over, if he shall come into his power. 3. But if he received money to manumit a slave (of his own)^[LXXXI], and the slave ran away before he could be manumitted, we must consider whether a condiction² can be brought for what he received. And if he was intending to sell this slave, and did not sell him because he had received money to set him free, a condiction ought not to be brought against him ; though certainly he must give security, that if the slave returns into his power, he will restore what he re­ceived, less the amount by which the slave has been depre­ciated in value by his running away. Obviously, if the man

the meaning of Ulpian.

² Sc. causa data causa non secuta, ex poenitentia.

dedit, ille uero manumittere nolit propter fugam offensus, totum quod accepit restituere eum oportet, sed si eligat is, qui decem dedit, ipsum seruum consequi, necesse est aut ipsum ei dari aut quod dedit restitui, quod si distracturus non erat eum, oportet id quod accepit restitui, nisi forte diligentius eum habiturus esset, si non accepisset ut manumitteret: tunc enim non est aequum eum et seruo et toto pretio carere. (4.) Sed ubi accepit, ut manumitteret, deinde seruus decessit, si quidem moram fecit manumissioni, consequens est, ut dicamus refun­dere eum quod accepit: quod si moram non fecit, sed cum profectus esset ad praesidem uel apud quem manumittere posset, seruus in itinere decesserit, uerius est, si quidem dis­tracturus erat uel quo ipse usurus, oportere dici nihil eum refundere debere, enimuero si nihil eorum facturus, ipsi adhuc seruum obisse : decederet enim et si non accepisset ut manumitteret: nisi forte profectio manumissionis gratia morti causam praebuit, ut uel a latronibus sit interfectus, uel

who gave the money still wishes him to be manumitted, and the other will not manumit him through anger at his running away, he must restore the whole of what he received. But if the giver of the ten aurei elects to have the slave himself, it is necessary that either the slave shall be given to him or the money which he gave be returned. But if the receiver of the money had no intention of selling him, what he received must be returned, unless perhaps he would have kept him more carefully, if he had not received money to manumit him; for then it is not right that he should lose both the slave and the whole of the price. 4. But supposing he received money to manumit him, and afterwards the slave died; if he made delay in manumitting him, it is consistent to lay down that he has to restore what he received; but if he made no delay, and the slave died on his journey when he was on his way to the Prefect or the person before whom the master could manumit him, it is more correct to rule that, if the master intended to sell him or to use him himself in any way, we must say that he need refund nothing. If, however, he was not intending to do anything of the sort, the slave died whilst still at his risk : for he would have died, even though he had received nothing to manumit him; unless indeed the journey for the purpose of manumission caused his death, supposing that he was either ruina in stabulo oppressus, uel uehiculo obtritus, uel alio quo modo, quo non periret, nisi manumissionis causa proficis­ceretur.

6. Idem libro tertio disputationum. Si extraneus pro muliere dotem dedisset et pactus esset, ut, quoquo modo fini­tum esset matrimonium, dos ei redderetur, nec fuerint nuptiae secutae, quia de his casibus solummodo fuit conuentum qui matrimonium sequuntur, nuptiae autem secutae non sint, quae­rendum erat, utrum mulieri condictio an ei qui dotem dedit competat, et uerisimile est in hunc quoque casum eum qui dat sibi prospicere : nam quasi causa non secuta habere potest condictionem, qui ob matrimonium dedit, matrimonio non copulato, nisi forte euidentissimis probationibus mulier ostend­erit hoc eum ideo fecisse, ut ipsi magis mulieri quam sibi prospiceret, sed et si pater pro filia det et ita conuenit, nisi euidenter aliud actum sit, condictionem patri competere Mar­cellus ait.

killed by robbers, or crushed by the fall of something at an inn, or run over by a cart, or destroyed in any other way, in which he would not have been destroyed but for being on the journey for manumission.

6. Ulpian. When a stranger had given a marriage-portion on behalf of a woman, and had made a pact that, in whatever way the marriage came to an end, the portion should be re­turned to him; and no marriage ensued : since the pact only referred to events consequent on a marriage, and a marriage never took place, it was questionable whether the condiction would avail for the woman or for him who gave the portion. And it seems probable that the giver in this case too^[LXXXII] intends his own benefit: for he can have a condiction on the ground of “purpose unattained,” since he gave in view of marriage, and no marriage took place; unless indeed the woman shews by the clearest proofs that he acted with intent to benefit her rather than himself. And even if a father gives on behalf of his daughter and there is a pact of the kind, Marcellus says the condiction is allowed to the father, unless the contrary intent is evident.

7. Julianus libro sexto decimo digestorum. Qui se debere pecuniam mulieri putabat, iussu eius dotis nomine promisit spon­so et soluit: nuptiae deinde non intercesserunt: quaesitum est, utrum ipse potest repetere eam pecuniam qui dedisset, an mulier. Nerua, Atilicinus responderunt, quoniam putasset qui­dem debere pecuniam, sed exceptione doli mali tueri se potuisset, ipsum repetiturum, sed si, cum sciret se nihil mulieri debere, promississet, mulieris esse actionem, quoniam pecunia ad eam pertineret, si autem uere debitor fuisset et ante nuptias soluisset et nuptiae secutae non fuissent, ipse possit condicere, causa debiti integra mulieri ad hoc solum manente, ut ad nihil aliud debitor compellatur, nisi ut cedat ei condic­ticia actione, (r.) Fundus dotis nomine traditus, si nuptiae insecutae non fuerint, condictione repeti potest: fructus quo­que condici poterunt, idem iuris est de ancilla et partu eius.

8. Neratius libro secundo membranarum. Quod Seruius in libro de dotibus scribit, si inter eas personas, quarum altera

7. Julian. A person, who believed himself to be in debt to a woman, by her order promised money as a marriage­portion to her betrothed, and paid it; thereafter the marriage did not ensue; it was asked whether he who gave the money can recover it, or the woman. Nerva and Atilicinus held that as he only thought that he owed the money and could have protected himself by an exceptio doli mali, he himself can recover it. But if he had promised, knowing that he owed the woman nothing, the action could be brought by the woman, because the money would belong to her^[LXXXIII]. But if he was really her debtor, and paid in contemplation of her marriage, and the marriage never took place, he can himself bring the condiction; the condition of indebtedness to the woman continuing to exist only to this extent, that the debtor can be compelled merely to cede to her his actio condictitia. 1. A field delivered by way of marriage-portion can, if no marriage ensues, be recovered by condiction : fruits also can come into the condiction. The rule is also the same as to a female slave and her offspring.

8. Neratius. When Servius states, in his work De Dotibus,

cannot himself sue, and is under no obligation except to transfer the actions which are appurtenant to his ownership.

9. i] De condictione causa data causa non secuta. 45 nondum iustam aetatem habeat, nuptiae factae sint, quod dotis nomine interim datum sit, repeti posse, sic intellegendum est, ut, si diuortium intercesserit, priusquam utraque persona iustam aetatem habeat, sit eius pecuniae repetitio, donec autem in eodem habitu matrimonii permanent, non magis id repeti possit, quam quod sponsa sponso dotis nomine dederit, donec maneat inter eos adfinitas : quod enim ex ea causa nondum coito matrimonio datur, cum sic detur tamquam in dotem peruenturum, quamdiu peruenire potest, repetitio eius non est.

9. Paulus libro septimo decimo ad Plautium. Si dona­turus mulieri iussu eius sponso numeraui, nec nuptiae secutae sunt, mulier condicet, sed si ego contraxi cum sponso et pecuniam in hoc dedi, ut, si nuptiae secutae essent, mulieri dos adquireretur, si non essent secutae, mihi redderetur, quasi ob rem datur et re non secuta ego a sponso condicam, (r.) Si quis indebitam pecuniam per errorem iussu mulieris sponso that if a marriage has taken place between two persons, one of whom has not yet attained to lawful age, whatever has been given meantime as a marriage-portion can be recovered,—his statement is to be understood thus, that if a divorce takes place before both the parties have attained to lawful age, there can be recovery of the money; but so long as they continue in the same condition of matrimony, the money can no more be recovered than that money can which a betrothed woman has given to her betrothed husband by way of marriage-portion, so long as the engagement between them continues. For what­ever is given to this end before marriage takes place, cannot be recovered, since it has been given to form a marriage portion, so long as the marriage may possibly take place.

9. Paulus. When, with intent to make a gift to a woman, I have paid money by her direction to her betrothed husband, and the marriage has not ensued, the woman will have the condiction for it. But if I made a contract with the betrothed husband, and gave money with the intent that it should become the woman’s marriage-portion, if the marriage ensued, and should be restored to me, if the marriage did not ensue, I shall have the condiction against the betrothed husband on the ground of its being given for a purpose and the purpose not having been accomplished, r. If any one has by mistake, upon the request of a woman, promised to her betrothed hus- eius promississet et nuptiae secutae fuissent, exceptione doli mali uti non potest: maritus enim suum negotium gerit et nihil dolo facit nec decipiendus est: quod fit, si cogatur indo­tatam uxorem habere, itaque aduersus mulierem condictio ei competit, ut aut repetat ab ea quod marito dedit aut ut liber­etur, si nondum soluerit, sed si soluto matrimonio maritus peteret, in eo dumtaxat exceptionem obstare debere, quod mulier receptura esset.

10. Iavolenus libro primo ex Plautio. Si mulier ei cui nuptura erat cum dotem dare uellet, pecuniam quae sibi debebatur acceptam fecit neque nuptiae insecutae sunt, recte ab eo pecunia condicetur, quia nihil interest, utrum ex nume­ratione pecunia ad eum sine causa an per acceptilationem peruenerit.

band a sum of money which is not due to her, and marriage has ensued, he cannot avail himself of the exception of fraud. For the husband acts in pursuance of his own interest and does nothing fraudulent, and he ought not to be defrauded, as he would be, if compelled to take the wife without the portion. Therefore the condiction is to be brought by him against the woman, so that he may either recover from her what he gave to her husband, or receive an acquittance, if he has not yet paid. But if the husband sues for the money after the marriage has been dissolved, the exception¹ ought only to stand good against him in respect of the proportion which his wife could have reclaimed (from the marriage portion).

10. Javolemts. If a woman, wishing to give a marriage­portion to the man whom she is about to marry, has acquitted him from a debt which he owed her, and then the marriage has not ensued, a condiction can lawfully be brought against him for the money, because it is immaterial whether it was by payment or by acceptilation that the money came to him with­out consideration^{[84] [85].}

sideration which has failed, there is a condictio causa data causa non se­cuta, to reverse the acceptilation and put the parties on their old footing. Hence, the passage seems at first sight to contradict D. 23. 3. 43./?'. where Scaevola says: “matrimonii causa acceptilationem interpositam

11. Iulianus libro decimo digestorum. Si heres arbitratu liberti certa summa monumentum iussus facere dederit liberto pecuniam, et is accepta pecunia monumentum non faciat, con­dictione tenetur.

12. Paulus libro sexto ad legem luliam et Papiam. Cum quis mortis causa donationem, cum conualuisset donator, con­dicit, fructus quoque donatarum rerum et partus et quod ad- creuit rei donatae repetere potest.

13. Marcianus libro tertio regularum. Si filius con­tulerit fratri quasi adgniturus bonorum possessionem et non adgnouit, repetere eum posse Marcellus libro quinto digesto­rum scribit.

14. Paulus libro tertio ad Sabinum. Si procuratori falso indebitum solutum sit, ita demum a procuratore repeti non potest, si dominus ratum habuerit, sed ipse dominus tenetur,

11. Julian. If an heir, directed to set up a monument at such cost as a freedman shall think proper, has given the money to the freedman, the latter, if he does not erect the monument after receiving the money, is liable to the con- diction.

12. Paulus. When the giver of a donation mortis causa, having recovered his health,.brings a condiction for the gift¹, he can reclaim also the fruits of what was given, and the off­spring, and any accession to it.

13. Marcianus. If a son² has thrown his goods into com­munity with his brother, intending to claim bonorum possessio, and then has not claimed it, Marcellus in the 5 th Book of his Digests writes that he can recover them.

14. Paulus. If money not really due be paid to a pre­tended agent, it is recoverable from the pretended agent, except when the principal has ratified his act; and then the

non secutis nuptiis nullam esse.” But, though Javolenus is technically correct, still, because of lhecondictio causa data causa non secuta, the result is the same as acceptilation were void. Or, if this explanation is un­satisfactory, we may suggest that Scaevola refers to a conditional ac­ceptilation, “if the marriage takes place,” Javolenus to an absolute ac-

ceptilation, but proveable to have been made in consideration of the marriage.

¹ Sc. ex poenitentia.

² An emancipated son must be meant, who was allowed to claim bonorum possessio on condition of bringing in his own properly for di­vision with his father’s. D. 37. 6.

48

ut Itilianus scribit, quod si dominus ratum non habuisset, etiamsi debita pecunia soluta fuisset, ab ipso procuratore re­petetur : non enim quasi indebitum datum repetetur, sed quasi ob rem datum nec res secuta sit ratihabitione non inter­cedente : uel quod furtum faceret pecuniae falsus procurator, cum quo non tantum furti agi, sed etiam condici ei posse.

15. Pomponius libro uicensimo secundo ad Sabinum. Cum seruus tuus in suspicionem furti Attio uenisset, dedisti eum in quaestionem sub ea causa, ut, si id repertum in eo non esset, redderetur tibi: is eum tradidit praefecto uigilum quasi in facinore depraehensum : praefectus uigilum eum summo supplicio adfecit. ages cum Attio dare eum tibi oportere, quia et ante mortem dare tibi eum oportuerit. Labeo ait posse principal himself is liable, as Julian states. But if the principal has not ratified, the money can be recovered from the agent himself, even if it was due; for it will not be recovered on the ground that it was never due, but on the ground that it was given for a purpose and the purpose was never executed, as no ratification followed : or because the pretended agent would commit a theft of the money, and so not only can he be pro­ceeded against for theft, but can also be liable to a condiction^[LXXXVI].

15. Pomponius. When your slave had been suspected by Attius of stealing from him, you made him over (to Attius) for examination on the matter by torture², on condition that if he was not found guilty thereof, he should be restored to you: Attius handed him over to the Praefectus Vigilum, as if he had been detected in the act, and the Praefectus Vigilum put him to death. You can sue Attius on the ground that he ought to give him to you, because even prior to the slave’s death he was bound to restore him to you³. Labeo says, it is also possi-

² It is clear that you did not give Attius mere possession, but owner­ship also; though an agreement was introduced into the contract for a reconveyance to you of the slave after his examination by torture, if it failed to establish his guilt.

³ Attius did wrong the moment he delivered the slave to the Prae­fectus Vigilum, for that was a breach of the contract. Either he had been examined and not found guilty, or

etiam ad exhibendum agi, quoniam fecerit quo minus exhiberet, sed Proculus dari oportere ita ait, si fecisses eius hominem, quo casu ad exhibendum agere te non posse: sed si tuus man­sisset, etiam furti te acturum cum eo, quia re aliena ita sit usus, ut sciret se inuito domino uti aut dominum si sciret pro­hibiturum esse.

16. Celsus libro tertio digestorum. Dedi tibi pecuniam, ut mihi Stichum dares : utrum id contractus genus pro por­tione emptionis et uenditionis est an nulla hic alia obligatio est quam ob rem data re non secuta ? in quod procliuior sum : et ideo, si mortuus est Stichus, repetere possum quod ideo tibi dedi, ut mihi Stichum dares, finge alienum esse Stichum, sed te tamen eum tradidisse: repetere a te pecuniam potero, ble to bring an actio ad exhibendum, because he made his pro­duction of him impossible. But Proculus says, if you made the slave his property, his obligation is to give back the slave; and in that case you cannot sue ad exhibendum: but, if he had remained your slave, you could also have proceeded against Attius for theft, because he has used the property of another person in a manner in which he knew the owner did not intend him to use it, and that the owner would have prevented him, if - he had known¹.

16. Celsus. I gave you money in order that you might give me Stichus; is a contract of this kind an instance of buy­ing and selling, or does no other obligation here arise than that of a gift “for a purpose, and the purpose unfulfilled”? I am inclined to take the view last-mentioned², and so, if Stichus be dead, I can recover the money which I gave you in consideration of your giving Stichus to me³. Suppose Stichus belonged to some other person, and that you nevertheless delivered him; I can recover the money from you⁴, becaus'e qui hominem accipientis non feceris: et rursus, si tuus est Stichus et pro euictione eius promittere non uis, non libera­beris, quo minus a te pecuniam repetere possim.

by delivering him to the Prefect before examination Attius prevented the examination taking place at all.

¹ Just. Inst. 4. i.6.

² Cujas says there is no sale, be­cause in a sale you would merely undertake “mihi licere habere Sti­chum ”; whereas in the instance be­fore us, you go further, and engage

W.

“dare Stichum,” or to transfer actzial ownership to me.

³ There would be no recovery if the transaction had been a sale. See D. 18. 6, passim.

⁴ Sc. prior to my eviction. In a sale mere liability to eviction will not be taken into account, but the eviction must actually take place in

4

you did not make the slave the property of the receiver : and again, if Stichus belongs to you, and you will not guarantee me against eviction¹, you will not be clear of the risk of my reclaiming the money from you.

order that legal proceedings may be instituted.

¹ I have a right to this security, as

a part of the dominium which you engaged to confer upon me.