DE CONDICTIONE INDEBITI.

D. 12. 6.

1. Ulpianus libro uicensimo sexto ad edictum. Nunc uidendum de indebito soluto, (i.) Et quidem si quis indebitum ignorans soluit, per hanc actionem condicere potest: sed si sciens se non debere soluit, cessat repetitio.

2. Idem libro sexto decimo ad Sabinum. Si quis sic soluerit, ut, si apparuisset esse indebitum uel Falcidia emer­serit, reddatur, repetitio locum habebit: negotium enim con­tractum est inter eos. (i.) Si quid ex testamento solutum sit,

1. Ulpian. Now let us consider as to a payment made without being due. i. And it is only when a man pays- through ignorance^[XCVII] what is not due that he can bring his con- diction in this form; but if he pays with knowledge that he does not owe, recovery is not permitted.

2. Ulpian. If any one has paid upon condition that the money is to be returned, if it be proved not to be due, or if the Falcidian law shall come into play², recovery is allowable : for there is a special agreement between the parties³, i. If a

rather than the former. See § 54 below.

² Sc. if through the discovery of further debts due from the testator, the heir, after paying the legacies, finds that he retains less than one quarter of the inheritance.

³ The condictio indebiti is based on a quasi-conlract; but the condic­tion here rests on a contract, and is therefore a condictio certi; for even if there be no stipulation, the pac­tum adjectum is part of the contract of mutuum.

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quod postea falsum uel inofficiosum uel irritum uel ruptum apparuerit, repetetur, uel si post multum temporis emerserit aes alienum, uel codicilli diu celati prolati, qui ademptionem continent legatorum solutorum uel deminutionem per hoc, quia aliis quoque legata relicta sunt, nam diuus Hadrianus circa inofficiosum et falsum testamentum rescripsit actionem dandam ei, secundum quem de hereditate iudicatum est.

3. Papinianus libro uicensimo octauo quaestionum. Idem est et si solutis legatis noua et inopinata causa hereditatem abstulit, ueluti nato postumo, quem heres in utero fuisse igno­rabat, uel etiam ab hostibus reuerso filio, quem pater obisse falso praesumpserat: nam utiles actiones postumo uel filio, qui hereditatem euicerat, dari oportere in eos, qui legatum perce­perunt, imperator Titus Antoninus rescripsit, scilicet quod bonae fidei possessor in quantum locupletior factus est tenetur payment has been made according to the terms of a testament, which is subsequently proved false, or inofficious, or void, or disannulled, it can be recovered; so too if a debt is discovered after a considerable time, or if a codicil long missing is pro­duced, wherein is contained an ademption of the legacies already paid, or a diminution of them through the circumstance that further legacies are given to other people¹. For the late Emperor Hadrian directed in a rescript on the subject of an inofficious or false testament, that the action should be granted to him to whom the inheritance was adjudged^{[98] [99].}

3. Papinian. The same also is the rule, if some novel and unexpected event has deprived the heir of the inheritance, after he has paid legacies; such, for instance, as the birth of a posthumous child, whom the heir did not know to be conceived, or the return of a son from the enemy, whom his father had falsely supposed to be dead. For the Emperor Titus Anto­ninus directed in a rescript that utiles actiones should be granted to the posthumous child, or to the son who had reclaimed the inheritance, against those who had received a legacy; obviously,

scriptus, who paid, cannot be con­sidered to have been agent for the heres ab intestato, as their interests are so clearly adverse. Hence, the latter has only an utilis actio inde­biti.

nec periculum huiusmodi nominum ad eum, qui sine culpa soluit, pertinebit.

4. Paulus libro tertio ad Sabinum.

5. Ulpianus libro sexto decimo ad Sabinum. Nec nouum, ut quod alius soluerit alius repetat, nam et cum minor uiginti quinque annis inconsulte adita hereditate solutis legatis in integrum restituitur, non ipsi repetitionem com­petere, sed ei, ad quem bona pertinent, Arrio Titiano rescrip­tum est.

6. Paulus libro tertio ad Sabinum. Si procurator tuus indebitum soluerit et tu ratum non habeas, posse repeti Labeo libris posteriorum scripsit: quod si debitum fuisset, non posse repeti Celsus: ideo, quoniam, cum quis procuratorem rerum on the ground that the possessor in good faith is liable to the extent of his enrichment, and that the risk of such debts ought not to fall upon a man who paid without fault^[C].

4. Paulus. The late Emperor Hadrian issued a rescript to the same effect for the case where a second testament is produced.

5. Ulpian. And it is no new principle for one man to recover what another has paid. For also in the case of a person under twenty-five years of age who is allowed restitutio in integrum, after having thoughtlessly taken up an inheritance and paid legacies, a rescript, addressed to Arrius Titianus, directed that recovery shall not be made by him, but by the man on whom the property devolves.

6. Paulus. If your agent pays what you do not owe, and you do not ratify his act, Labeo in his Posteriores says that he can recover²: but if you owed it, there can be no recovery, says Celsus; for this reason, that when a man entrusts his busi-

to payments to creditors in D. 12. 6. 19. 1.

² The agent has no actio mandati against his principal, for the commis­sion cannot be supposed to authorise the payment of an indebitum: still, having acted in ignorance and with­out fraud, he deserves protection, and so is allowed to bring an ntilis condictio indebiti against the re­ceiver of the money.

suarum constituit, id quoque mandare uidetur, ut soluat credi­tori, neque postea expectandum sit, ut ratum habeat, (i.) Idem Labeo ait, si procuratori indebitum solutum sit et dominus ratum non habeat, posse repeti.

7. Pomponius libro nono ad Sabinum. Quod indebitum per errorem soluitur, aut ipsum aut tantundem repetitur.

ness to an agent, he is understood to commission him to pay a creditor, and not to wait afterwards for ratification¹. 1. Labeo also says that if payment of what is not due is made to an agent, and the principal gives no ratification, there can be a recovery^{[101] [102]. 2. Celsus says that any one who has paid to an agent what is due (to his principal) is freed at once, and ratifica­tion is out of the question ; but if the agent received what was not due, ratification is required, because the principal is not understood to have given any commission about the exaction of this amount; and so, if there be no ratification, it must be recovered from the agent. 3. Julian says that neither a guardian nor an agent can recover what he has paid, and that it is immaterial whether he pays his own money or that of his ward or principal[103].}

7. Pomponius. When anything not due is paid by mistake, either the thing itself or its equivalent is recovered.

not by the payer, but the person on whose behalf the payment is made; at any rate if there is ratification. But if ratification is refused, the agent can recover; as we are ex­pressly told in the opening para­graph of this excerpt. We can therefore only suppose this state­ment of Julian’s to mean that an agent must sue in the principal’s name, and not in his own, unless the principal refuses to ratify; and that a guardian must sue in the minor’s name, as the minor cannot judge whether he ought to ratify or not.

8.

9. Ulpianus libro sexagensimo sexto ad edictum. Nam et maritus, si, cum facere nihil possit, dotem soluerit, in ea causa est ut repetere non possit.

10. Paulus libro septimo ad Sabinum. In diem debitor adeo debitor est, ut ante diem solutum repetere non possit.

11. Ulpianus libro trigensimo quinto ad Sabinum. Si is, cum quo de peculio actum est, per imprudentiam plus quam in peculio est soluerit, repetere non potest.

12. Paulus libro septimo ad Sabinum. Si fundi mei usum fructum tibi dedero falso existimans me eum tibi debere et antequam repetam decesserim, condictio eius ad heredem quoque meum transibit.

8. Paulus. When a stranger has made a payment to a woman on behalf of her insolvent husband, he cannot recover it; (because) it would certainly be due to the woman^[CIV] :

9. Ulpian : for even the husband himself, if he has repaid a marriage-portion, being insolvent at the time, is, under the circumstances, unable to recover it².

10. Paulus. A person who has to pay money at a future date is (already) a debtor to this extent, that he cannot re­cover what has been paid before the time.

11. Ulpian. If a person who is sued for the amount of his slave’s peculium, pays in error more than the value of the peculium, he cannot recover anything.

12. Paulus. If I give you the usufruct of my field, wrongly supposing that I owe it to you, and die before I have recovered it, a condiction on account thereof will devolve also to my heir.

cannot have the condictio indebiti, to recover what has been paid in virtue of a natural obligation.

² He is under a moral obligation to repay the dos on the dissolution of the marriage, so if he pavs in full, without availing himself of the bene­ficium competentiae, he has no con­dictio indebiti.

13. Idem libro decimo ad Sabinum.

14. Pomponius libro uicensimo primo ad Sabinum. Nam hoc natura aequum est neminem cum alterius detrimento fieri locupletiorem.

15. Paulus libro decimo ad Sabinum. Indebiti soluti condictio naturalis est et ideo etiam quod rei solutae accessit, uenit in condictionem, ut puta partus qui ex ancilla natus sit uel quod alluuione accessit: immo et fructus, quos is cui solu-

13. Paulus. A slave too can be under a natural obligation; and so if any one makes a payment on his account, or if he himself pays after being manumitted, or^[CV] pays, as Pomponius mentions, out of the peculium with which he is allowed to deal as he pleases, there can be no recovery. Hence a surety received on the slave’s behalf is bound, and a pledge given on his account can be held, and if the slave, who is allowed to deal with his peculium, has given a pledge to secure what he owes, an actio utilis pigneraticia must be granted, i. So too, what a pupil has received on loan without his tutor’s authoriza­tion, he cannot recover, if he has been enriched thereby, supposing he repays it after reaching puberty.

14. Pomponius. For it is naturally equitable that no one should become richer through the loss of another.

15. Paulus. The condiction for what has been paid with­out being due is founded on natural equity, and therefore even an accession to the article transferred is within the scope of the condiction; the offspring, for instance, born to a female slave, or an increase through alluvion : and further, the fruits which tum est bona fide percepit, in condictionem uenient. (1.) Sed et si nummi alieni dati sint, condictio competet, ut uel pos­sessio eorum reddatur: quemadmodum si falso existimans possessionem me tibi debere alicuius rei tradidissem, con­dicerem. sed et si possessionem tuam fecissem ita, ut tibi per longi temporis praescriptionem auocari non possit, etiam sic recte tecum per indebiti condictionem agerem. (2.) Sed et si usus fructus in re soluta alienus sit, deducto usu fructu a te condicam.

16. Pomponius libro quinto decimo ad Sabinum. Sub condicione debitum per errorem solutum pendente quidem condicione repetitur, condicione autem exsistente repeti non potest. (1.) Quod autem sub incerta die debetur, die exsistente non repetitur.

17. Ulpianus libro secundo ad edictum. Nam si cum the receiver has appropriated in good faith will also be within its scope. 1. And even if money belonging to another per­son has been given, the condiction can be brought, in order that the possession at any rate may be restored : just as I could use the condiction, if I had delivered to you the possession of anything, wrongly supposing that I owed you it. And further, if I had made the possession yours, so that through the opera­tion of prescription it could not be reclaimed from you, even then I could properly proceed against you by condictio indebiti'.

2. So too, if the usufruct of the thing paid belongs to some other person, I can bring a condiction for the thing minus the usufruct.

16. Pomponius. When anything due upon condition is paid through error whilst the condition is still in suspense, it can be recovered, but (if it is paid) after the condition has vested, it cannot be recovered. 1. And what is due at an uncertain date cannot be recovered when the date has arrived².

17. Ulpian. For if I promise to give something when I moriar dare promisero et antea soluam, repetere me non posse Celsus ait: quae sententia uera est.

¹ In this case I bring a condictio indebiti for the property, not for the mere possession. For indebitum resembles mutuum in being created by consumption or usucapion, as well as by delivery. The possession only was indebitum at first, but upon

completion of usucapion the pro­perty is indebitum also. So says Azo, basing his doctrine on Inst. 3. 14. 1: D. 23. 3.67: D. 39. 6. 13. pr.

² Another reading is non existente die repetitur, “can be recovered be­fore the day arrives.”

18. Idem libro quadragesimo septimo ad Sabinum. Quod si ea condicione debetur, quae omnimodo exstatura est, solutum repeti non potest, licet sub alia condicione, quae an impleatur incertum est, si ante soluatur, repeti possit.

19. Pomponius libro uicensimo secundo ad Sabinum. Si poenae causa eius cui debetur debitor liberatus est, naturalis obli­gatio manet et ideo solutum repeti non potest, (i.) Quamuis debitum sibi quis recipiat, tamen si is qui dat non debitum dat, repetitio competit, ueluti si is qui heredem se uel bonorum possessorem falso existimans creditori hereditario soluerit: hic enim neque uerus heres liberatus erit et is quod dedit repetere poterit: quamuis enim debitum sibi quis recipiat, die, and pay previously, Celsus says I cannot recover; and this opinion is correct^[CVI].

18. Ulpian. But if a thing is due under a condition which must inevitably come to pass, it cannot be recovered, if paid; whereas under the other kind of condition, where there is an uncertainty as to its ever existing, there can be recovery, if payment Le made in advance.

19. Pomponius. If a debtor is released² in order to inflict a penalty on the creditor, the natural obligation continues, and so there is no recovery of what has been paid. i. Although a man receive what is due to him, yet if the giver be paying what he does not owe, recovery is allowable; for instance, when one who erroneously supposes himself heir or bonorum possessor makes a payment to a creditor of the inheritance : for in this case the true heir is not acquitted, and the other can recover what he gave; for even thouga a man receives what is due to

dition : but in § 17 Ulpian is speak­ing of a date which must of neces­sity arrive, and such a day is the same as a condition which must come to pass, or which, in other words, is no condition at all. Hence § 17 is to be read in connection with 8 18. See a very strong case in point in D. 19. 'i. 19. 6.

² Sc. by operation of law.

tamen si is qui dat non debitum dat, repetitio competit. (2.) Si falso existimans debere nummos soluero, qui pro parte alieni, pro parte mei fuerunt, eius summae partem dimidiam, non corporum condicam. (3.) Si putem me Stichum aut Pamphilum debere, cum Stichum debeam, et Pamphilum soluam, repetam quasi indebitum solutum: nec enim pro eo quod debeo uideor id soluisse. (4.) Si duo rei, qui decem debebant, uiginti pariter soluerint, Celsus ait singulos quina repetituros, quia, cum decem deberent, uiginti soluissent, et quod amplius ambo soluerint, ambo repetere possunt.

20. Iulianus libro decimo digestorum. Si reus et fide­jussor soluerint pariter, in hac causa non differunt a duobus reis promittendi: quare omnia, quae de his dicta sunt, et ad hos transferre licebit.

21. Paulus libro tertio quaestionum. Plane si duos reos non eiusdem pecuniae, sed alterius obligationis constitueris,· ut him, yet if he who gives it gives what he does not owe, recovery is allowable¹. 2. If, supposing wrongly that I owe a debt, I pay money which is in part some other person’s and in part my own, I can bring the condiction for half the amount, not for half the coins. 3. If when I owe Stichus I think that I owe Stichus or Pamphilus, and deliver Pamphilus, I can recover him as paid without being due: for I am not considered to have made this payment in lieu of what I owed. 4. If two debtors who owed ten aurei, have at one and the same time paid twenty², Celsus says that each can recover five, because when they owed ten they paid twenty, and so both can recover what both paid in excess.

20. Julian. If a principal debtor and his surety have paid at one and the same time, they do not in the case we are considering differ from two promisers : and so all that has been said about the latter we may apply to the former also.

21. Paulus. But undoubtedly, if you suppose two persons to be bound, not for the same sum of money, but in some alternative obligation, as for instance, for Stichus or Pamphilus, puta Stichi aut Pamphili, et pariter duos datos, aut togam uel denaria mille, non idem dici poterit in repetitione ut partes repetant, quia nec soluere ab initio sic potuerunt, igitur hoc casu electio est creditoris, cui uelit soluere, ut alterius repetitio impediatur.

¹ We must suppose that he gives suo nomine, imagining that he him­self is the debtor ; if he gives alicno nomine, he cannot recover, but has an actio negotiorum gestorum against

W.

the real debtor.

² If they had paid at different times, the one who paid last would have had the condictio indebiti: see D. 12. 6. 2j.

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22. Pomponius libro uicensimo secundo ad Sabinum. Sed et si me puterri tibi aut Titio promississe, cum aut neutrum factum sit aut Titii persona in stipulatione comprehensa non sit, et Titio soluero, repetere a Titio potero, (i.) Cum iter excipere deberem, fundum liberum per errorem tradidi: in­certi condicam, ut iter mihi concedatur.

23. Ulpianus libro quadragensimo tertio ad Sabinum. Eleganter Pomponius quaerit, si quis suspicetur transactionem factam uel ab eo cui heres est uel ab eo cui procurator est et quasi ex transactione dederit; quae facta non est, an locus sit repetitioni, et ait repeti posse : ex falsa enim causa datum and both slaves to be given at one and the same time ; or for a garment or a thousand pence, we cannot say the same, viz. that in the recovery they will recover proportionally, because they could not even have so paid originally. Hence, in such case, the creditor can elect to which of them he will make restitution so that the other’s recovery may be prevented^[CVII].

22. Pomponius. So also, supposing I think that I have made a promise to you of Titius, Whereas neither promise was made, or Titius was not included in the stipulation, if I pay to Titius, I shall be able to recover from Titiiis. i. When I had a right to retain a footpath, I delivered the land by mistake as free from servitude, I carl bring a condictio incerti² to have the footpath granted to me.

23. Ulpian. Pomponius minutely discusses this case ; if any one supposes that a compromise has been effected either by a person to whom he is heir or by one for whom he is agent, and makes payment on the hypothesis of the com­promise, which in reality never took place, is recovery possible? And he says that it is, for the gift is on a false ground. The

joint creditors had paid different things, because it was impossible that they would agree in their choice.

² Servitudes are res mcertae, for corporeal things alone are considered certain.

est. idem puto dicendum et si transactio secuta non fuerit, propter quam datum est: sed et si resoluta sit transactio, idem erit dicendum. (1.) Si post rem iudicatam quis transegerit et soluerit, repetere poterit idcirco, quia placuit transactionem nullius esse momenti: hoc enim imperator Antoninus cum diuo patre suo rescripsit, retineri tamen atque compensari in causam iudicati, quod ob talem transactionem solutum est, potest, quid ergo si appellatum sit uel hoc ipsum incertum sit, an indicatum sit uel an sententia ualeat? magis est, ut trans­actio uires habeat: tunc enim rescriptis locum esse credendum est, cum de sententia indubitata, quae nullo remedio adtemp- tari potest, transigitur. (2.) Item si ob transactionem alimen­torum testamento relictorum datum sit, apparet posse repeti quod datum est, quia transactio senatusconsulto infirmatur. (3.) Si quis post transactionem nihilo minus condemnatus fuerit, dolo quidem id fit, sed tamen sententia ualet. potuit

same, I think, ought to be laid down, if the compromise on account of which the money was given did not take effect; and so too if the compromise was set aside, the same should also be ruled, i. If any one enters into a compromise after judg­ment, and carries out his compromise, he can recover; because it is established that the compromise is unavailing: for the Em­peror Antoninus and his late father issued rescripts to this effect. But a payment made in consequence of such a compromise can be retained and reckoned as a set-off against the amount of the judgment. What then, if an appeal has been made, or if the very point in dispute be whether there was a judgment, or whether the decision can be upheld? It is better to say that the com­promise stands good: for we must consider the rescripts to apply when there is a compromise after an unassailable deci­sion which cannot be attacked in any manner. 2. So too, if anything has been given in compromise for aliment bequeathed in a testament, it seems that what was given can be recovered, because the compromise is set aside by a senatusconsultum'.

3. If a defendant suffers judgment, in spite of a compromise having been effected, there is a want of good faith, but yet the decision stands good. But any one, who has made a com- autem quis, si quidem ante litem contestatam transegerit^ uolenti litem contestari opponere doli exceptionem : sed si post litem contestatam transactum est, nihilo minus poterit exceptione doli uti post secuti: dolo enim facit, qui contra transactionem expertus amplius petit, ideo condemnatus re­petere potest quod ex causa transactionis dedit, sane quidem ob causam dedit neque repeti solet quod ob causam datum est causa secuta: sed hic non uidetur causa secuta, cum trans­actioni non stetur, cum igitur repetitio oritur, transactionis exceptio locum non habet: neque enim utrumque debet locum habere et repetitio et exceptio. (4.) Si qua lex ab initio dupli uel quadrupli statuit actionem, dicendum est solutum ex falsa eius causa repeti posse.

¹ The senatusconsultum is de­scribed at length in D. 2. 15. 8. It

was proposed by the Emperor Mar­cus.

24. Idem libro quadragensimo sexto ad Sabinum. Si is, promise before litis contestation can put in the exception of fraud against his opponent who wishes to proceed to litis contes­tatio: and even if the compromise has taken place after litis contestatio, he can still employ the exception of subsequent fraud: for a man acts fraudulently who sues and proceeds with his claim after a compromise. Hence when he has suffered judgment he can recover what he gave on account of the com­promise. And yet it is clear that he gave for a reason, and what has been given for a reason is not usually recoverable when the reason has come to pass; in this case, however, the reason does not seem to have come to pass, because there is no adherence to the compromise. And so, as a right of recovery springs up, the exception on the compromise is not applicable; for it is not right that both the recovery and the exception should be allowed. 4. If any law has established an action for two-fold or four-fold originally^[CVIII], we must admit that recovery is possible, when anything has been paid through a groundless belief that the law applies.

24. Ulpian. If any one who could protect himself by a

recovered, even though the suit could have been defended success­fully. C. 4. 5. 4. But the case is different when the damages are double or quadruple, whether the claim is admitted or contested.

qui perpetua exceptione tueri se poterat, cum sciret sibi ex­ceptionem profuturam, promiserit aliquid ut liberaretur, con­dicere non potest.

25. Idem libro quadragensimo septimo ad Sabinum. Cum duo pro reo fideiussissent decem, deinde reus tria soluisset et postea fideiussores quina, placuit eum qui posterior soluit repetere tria posse: hoc merito, quia tribus a reo solutis septem sola debita supererant, quibus persolutis tria indebita soluta sunt.

26. Idem libro uicensimo sexto ad edictum. Si non sor­tem quis, sed usuras indebitas soluit, repetere non poterit, si sortis debitae soluit: sed si supra legitimum modum soluit, diuus Seuerus rescripsit (quo iure utimur) repeti quidem non posse, sed sorti imputandum et, si postea sortem soluit, sortem quasi indebitam repeti posse, proinde et si ante sors fuerit soluta, usurae supra legitimum modum solutae quasi sors perpetual exception, has promised something in return for an acquittance, although he knew that the exception would be in his favour, he cannot bring a condiction.

25. Ulpian. When two persons were sureties for a debtor to the amount of ten aurei, and the debtor thereupon paid three, and the sureties afterwards five each, it was decided that the surety who paid last could recover three : and properly, because when three had been paid by the debtor, only seven remained due; and after these had been discharged, three were paid without being due.

26. Ulpian. If a person has paid, not principal, but in­terest that is not due¹, he cannot recover, if the principal on which he paid it was due; but if he paid beyond the lawful rate, the late Emperor Severus decided by rescript, and we adopt the rule, that although the interest cannot be recovered, it must be reckoned towards the principal, and that if he after­wards pays the principal, the principal can be recovered as not due. In fact, even if the principal has been paid first, the in­terest in excess of the lawful rate^{[109] [110] can be recovered as principal}

nary persons, not in business, could take 0, tradesmen and merchants 8. In the case of petunia trajectitia 12 per cent, interest was lawful.

indebita repetuntur, quid si simul soluerit? poterit dici et tunc repetitionem locum habere, (i.) Supra duplum autem usurae et usurarum usurae nec in stipulatum deduci nec exigi possunt et solutae repetuntur, quemadmodum futurarum usu­rarum usurae. (2.) Si quis falso se sortem debere credens usuras soluerit, potest condicere nec uidetur sciens indebitum soluisse. (3.) Indebitum autem solutum accipimus non solum si omnino non debeatur, sed et si per aliquam exceptionem perpetuam peti non poterat: quare hoc quoque repeti poterit, nisi sciens se tutum exceptione soluit. (4.) Si centum debens, quasi ducenta deberem, fundum ducentorum solui, competere repetitionem Marcellus libro uicensimo digestorum scribit et centum manere stipulationem: licet enim placuit rem pro pecunia solutam parere liberationem, tamen si ex falsa debiti quantitate maioris pretii res soluta est, non fit confusio partis rei cum pecunia (nemo enim inuitus compellitur ad commu- not due. But what if he paid them together ? It may be said that in that case too recovery is allowable. 1. Interest, how­ever, and interest upon interest, if amounting to more than double (the principal) can neither be made a matter of stipula- lation nor be exacted¹; and, if paid, can be recovered, in like manner as interest on future interest can. 2. If any one, erroneously supposing that he owes a principal sum, has paid interest, he can bring a condiction, and is not considered to have paid with knowledge a sum not due. 3.. And we under­stand a payment to be made without being due not only when it is not owed at all, but also when it could not be sued for by reason of some perpetual exception: hence, this too can be recovered, unless a man paid it with knowledge that he was protected by the exception. 4. If I owed one hundred aurei and delivered a field worth two hundred, under the impression that I owed two hundred, Marcellus in the 20th book of his Digests writes that recovery^[111] is allowable, and that the stipulation for one hundred remains binding: for although it has been laid down that a thing paid in lieu of money works an acquittance^[112], still if a thing of too great value is paid through error as to the amount of the debt, there is no setting-off of part of the thing against the money⁴, (for no one is compelled nionem), sed et condictio integrae rei manet et obligatio in­corrupta : ager autem retinebitur, donec debita pecunia soluatur. (5.) Idem Marcellus ait, si pecuniam debens oleum dederit pluris pretii quasi plus debens, uel cum oleum deberet, oleum dederit quasi maiorem modum debens, superfluum olei esse repetendum, non totum, et ob hoc peremptam esse obliga­tionem. (6.) Idem Marcellus adicit, si, cum fundi pars mihi deberetur, quasi totus deberetur aestimatione facta, solutio pecuniae solidi pretii fundi facta sit, repeti posse non totum pretium, sed partis indebitae pretium. (7.) Adeo autem per­petua exceptio parit condictionem, ut lulianus libro decimo scripsit, si emptor fundi damnauerit heredem suum, ut uendi- torem nexu uenditi liberaret, mox uenditor ignorans rem tra­diderit, posse eum fundum condicere: idemque et si debitorem suum damnauerit liberare et ille ignorans soluerit. (8.) Qui filio familias soluerit, cum esset eius peculiaris debitor, si quidem ignorauit ademptum ei peculium, liberatur : si scit et to hold property in common against his will), but there re­mains a condiction for the whole thing, and the obligation con­tinues intact: but the land will be retained, until the money owing is paid. 5. Marcellus also says, if a person who owed, money has given oil of higher value, under the impression that he owed more (than he did), or if one who owed oil, has given oil under the impression that he owed a larger quantity, the excess of the oil is to be recovered, not the whole of it, and the obligation therefore is swept away. 6. Marcellus further adds, that if a part of a field was owing to me, and after a valuation has been made, under the impression that the whole was due, a payment of money has been made of the value of the whole field, the whole price cannot be recovered, but the price of the part not due. 7. But a perpetual exception so universally gives ground for a condiction, that Julian has stated in his tenth book that if the purchaser of a field has charged his heir to release the vendor from his obligation on the sale, and the vendor, not knowing this, has afterwards delivered the field, he can bring a condiction for it: and so too, if he has charged him to acquit a debtor of his, and the latter, not knowing the fact, has paid. 8. A person who has made pay­ment to a filiusfamilias, being his debtor in connection with his peculium, is discharged, if he did not know that his peculium had been taken from him : but if he knows this and yet soluit, condictionem non habet, quia sciens indebitum soluit. (9.) Filius familias contra Macedonianum mutuatus si sol­uerit et patri suo heres effectus uelit uindicare nummos, excep­tione summouebitur a uindicatione nummorum. (10.) Si quis quasi ex compromisso condemnatus falso soluerit, repetere potest. (11.) Hereditatis uel bonorum possessori, si quidem defendat hereditatem, indebitum solutum condici poterit: si uero is non defendat, etiam debitum solutum repeti potest. (12.) Libertus cum se putaret operas patrono debere, soluit: condicere eum non posse, quamuis putans se obligatum soluit, lulianus libro decimo digestorum scripsit: natura enim operas patrono libertus debet, sed et si non operae patrono sunt solutae, sed, cum officium ab eo desideraretur, cum patrono pays, he has not the condiction, because he has knowingly paid what is not due. 9. When a filiusfamilias has borrowed money in contravention of the senatusconsultum Macedonianum, if he has repaid it, and afterwards, becoming heir to his father, wishes to claim the money, he will be defeated in his claim by the exception^[113]. 10. If any one wrongly condemned in damages, pays under the idea that he is compromising, he can recover his money. 11. A condiction for what has been paid without being due can be brought against an heir or a bonorum possessor, if he defends his right to the inheritance : but if he does not defend it, there can also be recovery of what was paid being due². 12. A freedman, imagining that he owed sen-ices to his patron³, discharged them : Julian in the tenth book of his Digests stated that he could not recover, even though he paid under the impression that he was under obligation : for the freedman is bound naturally to do services for his patron. And even if the sen-ices were not done for the patron, but the freedman, when his personal duty

against its payment was rather for the punishment of the lender than for the protection of the borrower.

² The rule is the same when pay­

ment is made to a person supposed to be an agent, but not really an agent. C. 4. 5. 8. _ _

³ Sc. under the impression that he had made some special promise to render them. He owed them naturally, even without a promise.

decidit pecunia et soluit, repetere non potest, sed si operas patrono exhibuit non officiales, sed fabriles, ueluti pictorias uel alias, dum putat se debere, uidendum an possit condicere, et Celsus libro sexto digestorum putat eam esse causam ope­rarum, ut non sint eaedem neque eiusdem hominis neque eidem exhibentur: nam plerumque robur hominis, aetas tem­poris opportunitasque naturalis mutat causam operarum, et ideo nec uolens quis reddere potest, sed hae, inquit, operae recipiunt aestimationem: et interdum licet aliud praestemus, inquit, aliud condicimus : ut puta fundum indebitum dedi et fructus condico : uel hominem indebitum, et hunc sine fraude was required from him, compounded with his patron for a sum of money, and paid it, this too he cannot recover. But if he has performed services for his patron which were not matters of personal duty, but matters of handicraft, as painting and the like, thinking that he owes them, let us consider whether he can bring a condiction^[CXIV]. And Celsus in the sixth book of his Digests expresses an opinion that the nature of services is such that they are not always the same², nor due from all men alike, nor to all patrons alike : for in general the strength of a man, his age and his natural ability cause variation in the cha­racter of his services, and so a man may not be able to render them, even though willing. But these services, he says, admit of valuation; and sometimes, although we give one thing, we bring the condiction for another; for instance, I have given a field that I did not owe, and bring a condiction for the fruits : or (I have given) a slave who was not due, and you have sold him without fraud for a trifling price, then you are only bound to refund what you have out of his price ; or I

due to the person of the patron, can­not be claimed by the patron’s heirs, but operae fabriles can be assigned by the patron in his life-time and are due to his heirs after his death. See D. 38. 1.

² There is no contradiction be­tween this passage and D. 45. 2. 5, for although it is stated in the latter excerpt that the work of a deputy is equivalent to the work of the per­son whose place he supplies, yet it is added that the substitute must be ejusdem peritiae.

modico distraxisti, nempe hoc solum refundere debes quod ex pretio habes : uel meis sumptibus pretiosiorem hominem feci, nonne aestimari haec debent ? sic et in proposito, ait, posse condici, quanti operas essem conducturus, sed si delegatus sit a patrono officiales operas, apud Marcellum libro uicensimo digestorum quaeritur, et dicit Marcellus non teneri eum, nisi forte in artificio sint (hae enim iubente patrono et alii edendae sunt): sed si soluerit officiales delegatus, non potest condi­cere neque ei cui soluit creditori, cui alterius contemplatione solutum est quique suum recipit, neque patrono, quia natura ei debentur. (13.) Si decem aut Stichum stipulatus soluam quinque, quaeritur, an possim condicere: quaestio ex hoc descendit, an liberer in quinque : nam si liberor, cessat con­dictio, si non liberor, erit condictio, placuit autem, ut Celsus have made your slave more valuable by what I have spent upon him; ought not these points to be taken into account ? And so too in the case before us, he says, there can be a con- diction for the sum I should pay to hire his services. But the question is discussed by Marcellus in the twentieth book of his Digests, supposing he is assigned by his patron to render (to another) his official services^[CXV]? And Marcellus says he is not bound to render them, unless they are matters of handi­craft², for these must be rendered to another also, if the patron requests it; but if the assigned freedman has performed official services, he can neither bring a condiction against the person for whose benefit, as creditor (of his patron), he has performed them, since they were performed for him out of regard for the other³, and he only receives what is his own; nor against the patron, because they are naturally due to him. 13. If I have made a stipulatory promise of ten aurei or Stichus, and pay five aurei: it is asked whether I can bring a condiction. The question turns on this, whether I am acquitted as to five; for if I am acquitted, the condiction is unavailing; if I am not acquitted, there will be a condiction. But it has been settled, as Celsus has stated in the sixth book of his Digests and

operas praestaturus, num debeat operas ?”

- Sc. unless they are fabriles, and therefore not officiates at all.

³ Sc. the patron.

libro sexto et Marcellus libro uicensimo digestorum scripsit, non perimi partem dimidiam obligationis, ideoque eum qui quinque soluit in pendenti habendum, an liberaretur, petique ab eo posse reliqua quinque aut Stichum et, si praestiterit residua quinque, uideri eum et priora debita soluisse, si autem Stichum praestitisset, quinque eum posse condicere quasi indebita, sic posterior solutio comprobabit, priora quinque utrum debita an indebita soluerentur. sed et si post soluta quinque et Stichus soluatur et malim ego habere quinque et Stichum reddere, an sim audiendus, quaerit Celsus, et putat natam esse quinque condictionem, quamuis utroque simul soluto mihi retinendi quod uellem arbitrium daretur. (14·) Idem ait et si duo heredes sint stipulatoris, non sic posse alteri quinque solutis alteri partem Stichi solui: idem et si duo sint promissoris heredes, secundum quae liberatio non contingit_? nisi aut utrique quina aut utrique partes Stichi fuerunt solutae.

Marcellus in the twentieth of his, that the half of an obligation cannot be destroyed; and therefore whether he who has paid five aurei is acquitted must be considered to be in suspense; and the other five or Stichus may be demanded from him ; and if he pays the other five, he is considered to have paid the former five also as due; but if he pays Stichus, he can bring a condiction for the five as never due. Thus the second pay­ment will decide whether the first five were paid as due or as not due. But if, after the five have been paid, Stichus also is paid, and I prefer to keep the five and to return Stichus, am I to be listened to, asks Celsus. And he thinks that a condic­tion arises for the five ; although if both were paid together, a choice would be given me to retain which I pleased^[CXVI]. 14. He also says, if there be two heirs to the stipulator, and five aurei be paid to one, half of Stichus cannot be paid to the other: and so too if there are two heirs of the promiser. Hence there is no acquittance, unless five are paid to each or half of Stichus to each.

for the alternative. Fapinian and Salvius Julianus held that the donor could elect which should be returned, because he had originally a right to elect which he would pay, and Jus­tinian decided the dispute in favour of Papinian and Julian. C. 4. 5. 10.

76

27. Paulus libro uicensimo octauo ad edictum. Qui loco certo debere existimans indebitum soluit, quolibet loco repetet: non enim existimationem soluentis eadem species repetitionis sequitur.

28. Idem libro trigensimo secundo ad edictum. ludex si male absoluit et absolutus sua sponte soluerit, repetere non potest.

29. Ulpianus libro secundo disputationum. Interdum persona locum facit repetitioni, ut puta si pupillus sine tutoris auctoritate uel furiosus uel is cui bonis interdictum est solu­erit: nam in his personis generaliter repetitioni locum esse non ambigitur, et si quidem extant nummi, uindicabuntur, consumptis uero condictio locum habebit.

30. Idem libro decimo disputationum. Qui inuicem cre­ditor idemque debitor est, in his casibus, in quibus compen-

27. Paulus. A person who has paid what is not due, under the impression that it was due in a particular place, can recover it in any place: for this kind of recovery does not depend upon the idea entertained by the payer¹.

28. Paulus. If a judex has improperly acquitted a man, and the man pays voluntarily after being acquitted, he cannot recover^{[117] [118].}

29. Ulpian. Sometimes status gives occasion for recovery; as, for instance, if a ward without authorization of his tutor, or a madman, or a person interdicted from the management of his own property has made a payment: for there is no doubt that, as a rule, there is a recovery for such persons ; and if the money is existent, the mode is by vindication ; if it be con­sumed, a condiction will be appropriate.

30. Ulpian. He who is both debtor and creditor, if he has paid under circumstances where set-off is not allowable,

exception rri judicatae, if sued; for legally the obligation is dissolved: but, as it still subsists naturally, he cannot recover if he has paid freely. See D. 50. 17. 66. Sponte sua means with knowledge that he was able to use the exception. See § 26. 3 above.

satio locum non habet, si soluit, non habet condictionem ueluti indebiti soluti, sed sui crediti petitionem.

31. Idem libro primo opinionum. Is, qui plus quam hereditaria portio efficit per errorem creditori cauerit, indebiti promissi habet condictionem.

32. Iulianus libro decimo digestorum. Cum is qui Pamphilum aut Stichum debet simul utrumque soluerit, si, posteaquam utrumque soluerit, aut uterque aut alter ex his desiit in rerum natura esse, nihil repetet: id enim remanebit in soluto quod superest. (i.) Fideiussor cum paciscitur, ne ab eo pecunia petatur, et per imprudentiam soluerit, condicere stipulatori poterit et ideo reus quidem manet obligatus, ipse autem sua exceptione tutus est. nihil autem interest, fide­iussor an heres eius soluat: quod si huic fideiussori reus heres extiterit et soluerit, nec repetet et liberabitur. (2.) Mulier si in has no condiction on the ground of having paid what was not due, but has a right to recover the debt due to himself.

31. Ulpian. An heir who has in mistake given security to a creditor beyond the amount of his interest in the inheritance, has a condiction for the cancelling of a promise not due¹.

32. Julian. When a man who owes Stichus or Pamphilus pays both of them together, if, after he has paid both, both or one of them cease to exist, he will recover nothing: for that which survives will remain as the payment^{[119] [120]. 1. When a surety makes a pact that the money is not to be demanded from him, and through forgetfulness pays it, he can bring a condiction against the stipulator, and so the principal debtor remains bound, but he (the surety) is protected by his excep­tion[121]. And it makes no matter whether the surety pays or whether his heir does so; but if the principal debtor becomes heir to the surety and pays the money, he will not recover, but will be discharged. 2. If a woman[122] is under the impression}

give the other slave. D. 18. 1. 34· ⁶·

³ He is protected by his excep­tion in two senses : ist directly, in­asmuch as he could use it to resist the creditor’s claim, 2nd indirectly, as it will furnish ground for a con­dictio indebiti, if he has paid in error.

⁴ Gothofred would read mater,

ea opinione sit, ut credat se pro dote obligatam, quidquid dotis nomine dederit, non repetit: sublata enim falsa opinione re­linquitur pietatis causa, ex qua solutum repeti non potest. (3.) Qui hominem generaliter promisit, similis est ei qui hominem aut decem debet: et ideo si, cum existimaret se Stichum promississe, eum dederit, condicet, alium autem quem­libet dando liberari poterit.

33. Idem libro trigesimo nono digestorum. Si in area tua aedificassem et tu aedes possideres, condictio locum non habebit, quia nullum negotium inter nos contraheretur: nam is qui non debitam pecuniam soluerit, hoc ipso aliquid negotii gerit: cum autem aedificium in area sua ab alio positum that she is bound for a marriage-portion, she does not recover what she has given by way of portion : for when the false im­pression is removed, there remains the reason of affection, on account whereof what has been paid cannot be recovered. 3. He who has promised a slave in general terms, is like a person who owes a slave or ten aurei: and therefore, if he has given Stichus, under the impression that he promised to give him, he will have a condiction, and by giving any other slave can release himself¹.

33. Julian. If I have built on your ground, and you have possession of the building, the condiction has ho applica­tion, because there has been nothing in the nature of a contract between us; for he who has paid money that is not due, by this very circumstance engages in something akin to a contract: but where an owner occupies a building erected on his land by another person, he enters into nothing in the nature of a con- dominus occupat, nullum negotium contrahit, sed et si is qui in aliena area aedificasset, ipse possessionem tradidisset, con­dictionem non habebit, quia nihil accipientis faceret, sed suam rem dominus habere incipiat, et ideo constat, si quis, cum existimaret se heredem esse, insulam hereditariam fulsisset, nullo alio modo quam per retentionem impensas seruare posse.

but for this there is no MSS. author­ity, though it is clear enough that the woman meant is the mother of the bride.

¹ See note on 12. 6. 26. 13 above. The man who promises a slave, with­out further specification, can give any slave he pleases; and hence resembles, in the matter of having an option, a person who has pro­mised 10 aurei or Stichus, or 10 aurei or an unspecified slave. But from D. 31. 1. 19 we should con­clude that when payment has been made, the option is gone and recov­ery impossible. Pothier thinks that

the passage from D. 31. 1 and the present passage are absolutely at variance, and exhibit the conflicting views of the two schools of law. Gothofred says that D. 12. 6.32. 3 re­fers to an error of fact, the promiser thinking he had engaged to give Stichus, when in reality he had pro­mised a slave simply, without speci­fying any individual; and that D. 31. 1. 19 relates to the case when he delivers Stichus, who is a more valuable slave than Pamphilus, in error of law, supposing that he is bound to give the better one.

34. Idem libro quadragensimo digestorum. Is cui here­ditas tota per fideicommissum relicta est et praeterea fundus, si decem dedisset heredi, et heres suspectam hereditatem dix­erit et eam ex Trebelliano restituerit, causam dandae pecuniae tract. And even if the man who built on another’s ground, has himself transferred the possession, he will not have a con- diction; because he has not made anything to be the property of the receiver, but the owner begins to have his own property. And so it is admitted that if any one has strengthened a block of buildings forming part of an inheritance, under the belief that he is the heir, he can recover his expenses by no other mode except retention^[CXXIII].

34. Julian. The whole of an inheritance having been left in trust for a certain person, and a field as well, on con­dition of his giving ten aurei to the heir, the heir declared the inheritance to be a doubtful one and handed it over (to the beneficiary under the trust) under the senatusconsultum Trebel- lianum: he has no reason for giving the money², and can

strict law, and that he does not deny tliat on equitable grounds there is a utilis condictio incerti: but Julian’s words seem very explicit: “nullo alio modo quam per retentionem impensas servare posse.”

² Because the field, on account of which he was to give the money, is included in the inheritance which the heir voluntarily makes over to him. The heir who makes entry against his will can claim secondary fideicommissa which are charged in his favour upon primary fideicom­missarii, provided they are not given to him as heir, but as a specific in­dividual: but here clearly the ten aurei are to be his as heir, if he is to get them at all.

8o

non habet, et ideo quod eo nomine quasi implendae con­dicionis gratia dederit, condictione repetet.

35. Idem libro quadragensimo quinto digestorum. Qui ob rem non defensam soluit, quamuis postea defendere paratus est, non repetet quod soluerit.

36. Paulus libro quinto epitomarum Alfeni digestorum. Senius cuiusdam insciente domino magidem commodauit: is cui commodauerat pignori eam posuit et fugit: qui accepit non aliter se redditurum aiebat, quam si pecuniam accepisset: accepit a seruulo et reddidit magidem: quaesitum est, an pecunia ab eo repeti possit, respondit, si is qui pignori ac­cepisset magidem alienam scit apud se pignori deponi, furti eum se obligasse ideoque, si pecuniam a seruulo accepisset redimendi furti causa, posse repeti: sed si nescisset alienam apud se deponi, non esse furem, item, si pecunia eius nomine, a quo pignus acceperat, a seruo ei soluta esset, non posse ab eo repeti.

recover by condiction whatever he gave in respect of the field, under the impression that a condition had to be fulfilled by him.

35. Julian. He who has made payment because of a suit being undefended, cannot recover what he has paid, even though he is afterwards prepared to defend the suit^[CXXIV].

36. Paulus. A certain man’s slave without his master’s knowledge lent a dish : the person to whom he had lent it pledged it and absconded : the holder (of the pledge) declared that he would not return it, unless he received his money: he received it from the slave and returned the dish: it was asked whether the money could be recovered from him. The answer was, if the receiver in pledge knew that the dish deposited with him in pledge was another man’s, he has made himself liable for theft, and therefore, if he received money from the slave to restore a stolen article, that money can be recovered : but if he did not know that the article deposited with him belonged to another, he is no thief. And so, if the money was paid to him by the slave on account of the person from whom he had received the pledge, it cannot be recovered from him.

ligation: “de re judicata, de re de­fendenda, de dolo malo.” D. 46.

7. 6. Just. Inst. 4. 11. 4.

37. Julianus libro tertio ad Urseium Ferocem. Seruum meum insciens a te emi pecuniamque tibi solui: eam me a te repetiturum et eo nomine condictionem mihi esse omnimodo puto, siue scisses meum esse siue ignorasses.

38. Africanus libro nono quaestionum. Frater a fratre, cum in eiusdem potestate essent, pecuniam mutuatus.post mor­tem patris ei soluit: quaesitum est, an repetere possit, respon­dit utique quidem pro ea parte, qua ipse patri heres exstitisset, repetiturum, pro ea uero, qua frater heres exstiterit, ita repetitu­rum, si non minus ex peculio suo ad fratrem peruenisset : natu­ralem enim obligationem quae fuisset hoc ipso sublatam uideri,

37. Julian. I bought my own slave from you,· not know­ing he was mine, and paid you the money. I think that in any case I can recover the money from you and have a con- diction on account of it, whether you knew that the slave was mine or did not know¹.

38. Africanus. One brother borrowed money from another at a time when they were both in the same man’s potestas, and paid it to him after the death of the father: it was asked whether he could recover it. The answer was that he could certainly recover it to the proportion in which he was heir to his father; but as to the proportion in which his brother was heir, this he could (only) recover, if his brother had received a sum not smaller out of his (the payer’s) peculium^{[125] [126]. For the natural obligation, which had once existed, seemed to}

the debt of the one brother to the other was paid 'or was not paid be­fore the collatio bonorum. But it is supposed that the debt is paid by the one to the other after a division of the inheritance; and clearly the result is that the shares of the bro­thers in the inheritance are made unequal, differing obviously by twice the amount of the debt paid. Ought there then to be a recovery? The debt due from the first brother to the second was really a debt due to the father, hence devolves on the two as co-heirs: there is therefore a condictio indebiti as to half, which was due from the first brother to himself, and which he has instead paid to the second brother. But, Julian adds, there is also a

quod peculii partem frater sit consecutus, adeo ut, si praelega­tum filio eidemque debitori id fuisset, deductio huius debiti a fratre ex eo fieret, idque maxime consequens esse ei sententiae, quam lulianus probaret, si extraneo quid debuisset et ab eo post mortem patris exactum esset, tantum iudicio eum familiae herciscundae reciperaturum a coheredibus fuisse, quantum ab his creditor actione de peculio consequi potuisset, igitur et si re integra familiae herciscundae agatur, ita peculium diuidi aequum esse, ut ad quantitatem eius indemnis a coherede praestetur: porro eum, quem aduersus extraneum defendi be removed by the mere fact that the one brother obtained a portion of the peculium of the other: so that even if the pecu­lium of the brother who was the debtor had been given to him as a legacy, the debt might have been deducted from it by the other brother. And this rule is the obvious consequence of an opinion which Julian approved : viz. that if one brother had owed anything to a stranger, and it had been exacted from him after his father’s death, he would have recovered from his co­heirs, by judicium familiae erciscundae, the amount which the creditor could have got from them by actio de peculio. Hence too, if there be a judicium familiae erciscuudaehefoxe anything is done¹, it is proper for the peculium to be so divided that the debtor be guaranteed by his co-heir to the amount of it²: therefore, he who ought to be protected against a stranger, oportet, longe magis in eo, quod fratri debuisset, indemnem esse praestandum. (1.) Quaesitum est, si pater filio crediderit isque emancipatus soluat, an repetere possit, respondit, si nihil ex peculio apud patrem remanserit, non repetiturum: nam manere naturalem obligationem argumento esse, quod extraneo agente intra annum de peculio deduceret pater, quod sibi filius debuisset. (2.) Contra si pater quod filio debuisset eidem emancipato soluerit, non repetet: nam hic quoque manere naturalem obligationem eodem argumento probatur, quod, si extraneus intra annum de peculio agat, etiam quod pater ei debuisset computetur, eademque erunt et si extraneus heres exheredato filio soluerit id, quod ei pater debuisset. (3.) Legati satis accepi et cum fideiussor mihi soluisset, appa­ruit indebitum fuisse legatum : posse eum repetere existimauit.

condictio indebiti as to the other half as well: for the first brother, if he had paid his debt before collatio, would have contributed to the here­ditas hispeculium, minus the amount of the debt, and would still have received one-half of the hereditas on the final division: hence, the second brother has already been paid by the needless excess of the peculium contributed by the first. But if the first had no peculium, or was a bank­rupt as to his peculium, then the second brother retains the second half, or at any rate so much of it as measures the amount by which his share of the inheritance would have been augmented, if the first brother had borrowed money to make repay­ment to the other, prior to the colla­tio bonorum and the division of the

inheritance. This is only fair; for in such a case the second brother has not been paid by the first either legally or naturally; and it is only because he has been paid naturally, when the first has had a peculium to collate, that the contrary rule is in general upheld.

¹ Re iutegra here means “before the creditor has taken proceedings against the heir who is in debt to him.” In the case just discussed the partition of the inheritance had been made without thought of the debt due from one of the heirs to a stranger: here we are considering what ought to be done, if the debt is thought of at the time of parti­tion.

² Ejus must mean the portion of the debt recoverable from the co-

must still more be saved from harm in reference to what he owed to a brother. 1. It was asked, supposing a father has lent money to his son, and the son repays it after emancipation, can he recover it ? The answer was, if no part of the peculium was left in the father’s hands, he cannot recover¹: for that the natural obligation continues is proved by the fact that if a stranger sued de peculio within the year², the father could set off what the son owed to him. 2. In the converse case, if a father has paid to his son after emancipation a debt which he owed him (before emancipation), he cannot recover. For that the natural obligation continues in this case also is proved in the same way, because if a stranger sues within the year de peculio, account is also taken³ of what the father owed to the son. And such also will be the rules if an extraneus heres pays to a disinherited son what his father owed him. 3. I took sureties for a legacy, and after one of them had paid me, it was proved that the legacy was not due; it was held that he could recover⁴.

heir by actio de peculio brought by the creditor.

¹ If the father had retained the peculium, the amount retained would be the measure of what the son could reclaim as indebitum.

² The action can be brought whilst the son is still under potes-

tas and for one year afterwards. D. 15. 2. 1. pr.

³ Sc. account is taken of this as well as of what is actually in the father’s hands.

⁴ He must have paid siio nomine. See § 47 below. If he paid alieno nomine he has an action of mandate

S₄

39. Marcianus libro octauo institutionum. Si quis, cum a fideicommissario sibi cauere poterat, non cauerit, quasi in­debitum plus debito eum solutum repetere posse diui Seuerus et Antoninus rescripserunt.

40. Idem libro tertio regularum. Qui exceptionem perpe­tuam habet, solutum per errorem repetere potest: sed hoc non est perpetuum, nam si quidem eius causa exceptio datur cum quo agitur, solutum repetere potest, ut accidit in senatus consulto de intercessionibus : ubi uero in odium eius cui debe-

39. Martian. If any one who was able to demand security from a fideicommissarius, has not taken security, the late Emperors Severus and Antoninus declared in a rescript that he can recover, as not due, what he has paid in excess of his obligation^[CXXVII].

40. Martian. He who has a perpetual exception can recover what he has paid in error : but this rule does not apply to all cases. For it is when an exception is granted for the sake of the defendant, that he can recover what he has paid, as is the case under the senatusconsultum de intercessionibus ²: but when the exception is granted to prejudice the creditor, what

against his principal, and the princi­pal has the condictio indebiti against the receiver of the money.

¹ There are three cases in which the fiduciarius can demand security from the fideicommissarius.

i. When a gift is upon condition that something be not done, e.g. “si in Capitolium non ascenderit, si Stichum non manumiserit:” the fiduciarius can, when he pays the money, require a cautio Muciana from the fideicommissarius. D. 35.

1. 36: Gai. Comm. 2. 254.

3. When a patron pays a trust­bequest to a stranger, he has a right to a cautio to save him from being so overcharged by payment of debts subsequently proved, as to be left in posses­sion of less than his proper share. D. 36. 1. 60: Gai. Comm. 3. 41, 42.

In all these cases the mere omis­sion to take the cautio gives the fidu­ciarius a right to recover what he has paid: or in cases (1) and (2) to bring a condictio iucerti to enforce the giving of a cautio. D. 7.5. 5. • : D· 35· 4· 3· ^IO·

² Sc. the S. C. Velleianum, which forbade women to “intercede.” Intercessio is any contract which one person enters into as substitute for another; or as Westenberg puts it: “ est autem intercedere nihil aliud

tur exceptio datur, perperam solutum non repetitur, ueluti si filius familias contra Macedonianum mutuam pecuniam acce­perit et pater familias factus soluerit, non repetit, (i.) Si pars domus, quae in diem per fideicommissum relicta est, arserit ante diem fideicommissi cedentem et eam heres sua impensa refecerit, deducendam esse impensam ex fideicommisso constat et, si sine deductione domum tradiderit, posse incerti condici, quasi plus debito dederit. (2.) Si pactus fuerit patronus cum liberto, ne operae ab eo petantur, quidquid postea solutum fuerit a liberto, repeti potest.

41. Neratius libro sexto membranarum. Quod pupillus si sine tutoris auctoritate stipulanti promiserit soluerit, repetitio est, quia nec natura debet.

42. Ulpianus libro sexagensimo octauo ad edictum. Poenae non solent repeti, cum depensae sunt.

has been wrongly paid cannot be recovered; for instance, when a filiusfamilias has received money on loan in contravention of the senatusconsultum Macedonianum, and repaid it after becom­ing a paterfamilias, he does not recover it. i; If part of a house, which has been left in trust for transfer on a certain day, has been burnt before the vesting of the date of the trust, and the heir has repaired it at his own expense, it is admitted that the expense ought to be deducted from the trust property, and if he has delivered the house without making the deduction, he can bring a condictio incerti on the ground that he has given more than was due. 2. If a patron has made a pact with his freedman, that services shall not be required from him, anything subsequently paid by the freedman can be recovered¹.

41. Neratius. Whatever a pupil has promised to a stipu­lator -without authorization of his tutor, and has paid², can be recovered, because it is not due even naturally.

42. Ulpian. Penal sums cannot be recovered when they have been paid.

quam alienam obligationem qualem- cumque, sive veterem, sive novam in se suscipere.” Hence it includes ad- promissio, becoming surety for an old engagement, or exproniissio, re­placing an old one by a new one.

¹ This refers to operae fabriles ; not to operae officiates, as we see from D. 12. 6. 26. 12.

² We read “si sine” in accord­ance with the Basilica.

IS. Paulus libro tertio ad Plautium. Si quis iurasset se dare non oportere, ab omni contentione discedetur atque ita solutam pecuniam repeti posse dicendum est.

44. Idem libro quarto decimo ad Plautium. Repetitio nulla est ab eo qui suum recepit, tametsi ab alio quam uero debitore solutum est.

45. Iavolenus libro secundo ex Plautio. Si is, qui here­ditatem uendidit et emptori tradidit, id, quod sibi mortuus debuerat, non retinuit, repetere poterit, quia plus debito solu­tum per condictionem recte recipietur.

46. Idem libro quarto ex Plautio. Qui heredis nomine legata non debita ex nummis ipsius heredis soluit, ipse quidem repetere non potest: sed si ignorante herede nummos eius tradidit, dominus, ait, eos recte uindicabit. eadem causa rerum corporalium est.

43. Paulus. If any one has made oath that he is not under obligation to give, there will be a stay to all proceedings; and so we must rule that money which has been paid can be recovered^[CXXVIII].

44. Paulus. There is no recovery from one who has re­ceived what belongs to him, although it has been paid by another person and not by the true debtor⁸.

45. Javolenus. If a person, who has sold an inheritance and delivered it to the purchaser, has not retained what the dead man owed him, he can recover this; because what is paid in excess of a debt will be properly recovered by con- diction.

46. Javolenus. A person who has paid, on the heir’s account and with the heir’s money, legacies which are not due, cannot himself recover; but if he paid the heir’s money with­out his knowledge, the heir, he says, can lawfully bring a vindi­cation for it³. The case is the same with corporeal things.

² Sc. if it has been paid alieno nomine, or on the debtor’s account.

³ If he paid with the heir’s con­sent, but for a cause which did not bind the heir, the heir has a condic­tio.

47. Celsus libro sexto digestorum. Indebitam pecuniam per errorem promisisti; eam qui pro te fideiusserat soluit, ego existimo, si nomine tuo soluerit fideiussor, te fideiussori, stipu­latorem tibi obligatum fore: nec exspectandum est, ut ratum habeas, quoniam potes uideri id ipsum mandasse, ut tuo nomine solueretur: sin autem fideiussor suo nomine soluerit quod non debebat, ipsum a stipulatore repetere posse, quoniam indebitam iure gentium pecuniam soluit: quo minus autem consequi poterit ab eo cui soluit, a te mandati iudicio consecuturum, si modo per ignorantiam petentem exceptione non summouerit.

48. Idem libro sexto digestorum. Qui promisit, si aliquid a se factum sit uel cum aliquid factum sit, dare se decem, si, priusquam id factum fuerit, quod promisit dederit, non uide- bitur fecisse quod promisit atque ideo repetere potest.

49. Modestinus libro tertio regularum. His solis pecu-

47. Celsus. You promised through error money which was not due, and a person who became surety for you paid it. I think that if the surety paid on your account, you will be under obligation to the surety¹, and the stipulator to you^{[129] [130]: and we need not wait till you ratify the proceeding, since you may be considered to have given your mandate for the very purpose of payment being made on your account[131]. But if the surety paid on his own account what was not due, he can him­self recover from the stipulator, since he has paid what was naturally no debt: but whatever amount he cannot recover from the man to whom he made payment, he can recover from you in an action on mandate, provided only it was through ignorance that he did not repel the plaintiff by an exception.}

48. Celsus. If a person promised that he would give ten aurei if something were done by him or when something should have been done by him, and gave what he promised before the thing was done, he will not be considered to have been carrying out what he promised, and so can recover.

49. Modestinus. A condiction for money is brought nia condicitur, quibus quoquo modo soluta est, non quibus proficit.

50. Pomponius libro quinto ad Quintum Mucium. Quod quis sciens indebitum dedit hac mente, ut postea repeteret, re­petere non potest.

51. Idem libro sexto ad Quintum Mucium. Ex quibus causis retentionem quidem habemus, petitionem autem non habemus, ea si soluerimus, repetere non possumus.

52. Idem libro uicensimo septimo ad Quintum Mucium. Damus aut ob causam aut ob rem : ob causam praeteritam, ueluti cum ideo do, quod aliquid a te consecutus sum uel quia aliquid a te factum est, ut, etiamsi falsa causa sit, repetitio eius pecuniae non sit : ob rem uero datur, ut aliquid sequatur, quo non sequente repetitio competit.

53. Proculus libro septimo epistularum. Dominus testa­mento seruo suo libertatem dedit, si decem det: seruo ignorante against those persons only to whom in some manner or other it has been paid, and not against those who are benefited.

50. Pomponius. What a man has given, knowing that it is not due, and intending afterwards to recover it, he cannot recover^[132].

51. Pomponius. Whenever we have a right of retention, but not a right of action, if we pay such things, we cannot recover them².

52. Pomponius. We give either for a reason or for a pur­pose : for a reason that is past, as when I give because I have obtained something from you, or because something has been done by you; so that, even if the reason be false, there is no recovery of the money : but a gift is for a purpose when it is in order that something may follow, and if it does not follow, re­covery is allowable.

53. Proculus. A master in his testament granted liberty to his slave on condition of his giving ten aurei (to me): the

understand him to mean a right to retain until claim is made, but no right, legal at any rate, to retain against a claim. As to a right of retention being legal or natural, the decision turns on whether it is or is not sufficient to found an exceptio perpetua: D. 12.6. 26.3.

id testamentum non ualere data sunt mihi decem : quaeritur, quis repetere potest. Proculus respondit: si ipse seruus pecu­liares nummos dedit, cum ei a domino id permissum non esset, manent nummi domini eosque non per condictionem, sed in rem actione petere debet, si autem alius rogatu serui suos nummos dedit, facti sunt mei eosque dominus serui, cuius nomine dati sunt, per condictionem petere potest: sed tam benignius quam utilius est recta uia ipsum qui nummos dedit suum recipere.

54. Papinianus libro secundo quaestionum. Ex his omnibus causis, quae iure non ualuerunt uel non habuerunt effectum, secuta per errorem solutione condictioni locus erit.

55. Idem libro sexto quaestionum. Si urbana praedia locauerit praedo, quod mercedis nomine ceperit, ab eo qui soluit non repetetur, sed domino erit obligatus, idemque iuris slave not knowing that the testament was invalid, the ten aztrei were given to me : the question is, who can recover them. Proculus replied : if the slave himself gave money out of his peculium, although his master¹ had not granted him permission to do so, the money remains the property of his master; who must recover it, not by condiction, but by real action^{[133] [134]. But if some one else gave his own money at the slave’s request it was made my property; and the owner of the slave, on whose account it was given, can claim it by condiction: but it is both more fair and more convenient that the man who gave the money should recover his own property directly[135].}

54. Papinian. If payment has been made by mistake for any cause which has become invalid or inefficacious through the operation of law, there will be ground for a condiction.

55. Papinian. If a wrongful possessor has let buildings, the money which he has received as rent cannot be recovered from him by the payer, but he will be answerable for it to the owner (of the buildings). The same will also be the rule as to

³ Sc. by an utilis actio indebiti, and not by an actio negotiorum ges­torum brought against the dominus.

erit in uecturis nauium, quas ipse locauerit aut exercuerit, item mercedibus seruorum, quorum operae per ipsum fuerint locatae, nam si seruus non locatus mercedem ut domino praedoni rettulit, non fiet accipientis pecunia, quod si uecturas nauium, quas dominus locauerat, item pensiones insularum acceperit, ob indebitum ei tenebitur, qui non est liberatus soluendo. quod ergo dici solet praedoni fructus posse condici, tunc locum habet, cum domini fructus fuerunt.

56. Idem libro octauo quaestionum. Sufficit ad causam indebiti incertum esse, temporaria sit an perpetua exceptionis defensio, nam si qui, ne conueniatur, donec Titius consul fiat, paciscatur, quia potest Titio decedente perpetua fieri exceptio, quae ad tempus est Titio consulatum ineunte, summa ratione dicetur, quod interim soluitur, repeti: ut enim pactum, quod in the freight of ships which he¹ has let out or worked; and as to the hire of slaves whose labour has been let out by him. For if a slave, not let out^{[136] [137], has brought his earnings to the unlawful possessor, as being his master, the money will not become the property of the receiver. So too, if he has received the freight of ships, which the owner let out, or the rents of buildings, he will be liable, on the score of money not due, to him who is not acquitted by the payment. Hence, the common saying, that fruits can be recovered by condiction from an unlawful possessor, applies to the case when the fruits belonged to the owner[138].}

56. Pafinian. To make money not due it is sufficient for it to be doubtful whether the preventing power of an excep­tion is temporary or perpetual. For if a man makes an agree­ment that he is not to be sued until Titius becomes consul; as the exception may become perpetual by the death of Titius, whilst it is temporary only, if Titius enters on the consulship; it may be said most reasonably that there is recovery of what is paid during the pendency of the condition : for just as a pact^[139], when made to depend on a fixed day, no more gives rise

supposing the praedo to be agent for the owner. There is no condiction, if he acts as owner, and the payer deals with him on that supposition.

⁴ Sc. a pactum de non petendo. If there is a pact not to sue before a certain date, the debtor who pays before the date cannot recover; be-

tempus certum collatum est, non magis inducit condictionem, quam si ex die debitor soluit, ita prorsus defensio iuris, quae causam incertam habet, condictionis instar optinet.

57. Idem libro tertio responsorum. Cum indebitum impu­beris nomine tutor numerauit, impuberis condictio est. (1.) Creditor, ut procuratori suo debitum redderetur, mandauit: maiore pecunia soluta procurator indebiti causa conuenietur: quod si nominatim, ut maior pecunia solueretur, delegauit, inde­biti cum eo qui delegauit erit actio, quae non uidetur perempta, si frustra cum procuratore lis fuerit instituta.

58. Idem libro nono responsorum. Seruo manumisso fidei­commissum ita reliquit, si ad libertatem ex testamento perue- to a condiction than does the debtor’s payment after the date; so too a defence of law which is of uncertain character¹ is equi­valent to a condition.

57. Papinian. When a guardian has paid on account of his ward what is not due, the condiction belongs to the ward⁸. 1. A creditor gave commission for a debt to be paid to his agent: if too large a sum has been paid, the agent can be sued for money not due. But if the creditor gave express authority for the extra sum to be paid, the action for money not due will lie against him who gave the authority; and this action does not seem to be debarred, if a suit has been brought fruitlessly against the agent³.

58. Papinian. A person bequeathed a sum in trust for a manumitted slave, on condition of the slave’s obtaining his liberty by virtue of his testament: after he had received the nerit: post acceptam sine iudice pecuniam ingenuus pronunti­atus est: indebiti fideicommissi repetitio erit.

cause he has paid what is certain to become due eventually: see D. 12. 6. 10. If there is a pact not to sue before a date, which may never come to pass, recovery is allowed: D. 12. 6. 16. 1. Hence Papinian’s argument is that a condition and a date are very much alike in law: a condition certain to come to pass is no condition at all, and resembles a fixed date in not giving rise to a condiction on account of premature payment; a condition proper, i.e. one that is uncertain of fulfilment, gives rise to a condiction, and so

also does a purely problematical date, if payment is made too soon.

¹ “Quae causam incertam habet = de qua incertum est, an perpetuo excludat actionem necne.” Pothier.

² It is a general rule that the con­diction is granted to the person on whose behalf the payment is made, and not of necessity to the actual payee. C. 4. 5. 6.

³ The payment, in so far as the agent has authority, is a payment to the principal. See C. 4. 5. 2: D. 46. 3. 34. pr.

59. Idem libro secundo definitionum. Si fideiussor iure liberatus soluerit errore pecuniam, repetenti non oberit: si uero reus promittendi per errorem et ipse postea pecuniam soluerit, non repetet, cum prior solutio, quae fuit irrita, naturale uincu- lum non dissoluit, nec ciuile, si reus promittendi tenebatur.

60. Paulus libro tertio quaestionum. lulianus uerum debitorem post litem contestatam manente adhuc iudicio nega­bat soluentem repetere posse, quia nec absolutus nec con­demnatus repetere posset: licet enim absolutus sit, natura tamen debitor permanet: similemque esse ei dicit, qui ita promisit, siue nauis ex Asia uenerit siue non uenerit, quia ex una causa money without litigation¹, he was declared to be freeborn : there will be recovery of the trust-bequest, as not due.

59. Papinian. If a surety, released by operation of law, has paid money through mistake, there is no reason why he should not recover it: but if the principal debtor also himself pays subsequently through mistake, he will not recover, be­cause the first payment, being void, has not dissolved either the natural or the civil obligation, if the principal debtor was bound^{[140] [141].}

60. Paulus. Julian says that a genuine^[142] debtor, who pays after litis contestatio whilst the suit is still pending, cannot recover : because, whether acquitted or condemned, he has no right to recover. For even if he be acquitted, still he remains a debtor by natural law: and he says that he resembles the man who promised on condition “ that a ship came from Asia or did not come” : because on the single condition^[143] a ground

³ K’rzzr=bound by natural law at any rate, whether or not bound civilly.

⁴ Sc. the single condition, which in itself was a double one: “sive navis venerit sive non.” The word­ing of the sentence is somewhat crabbed, but the sense, even as it stands, is not obscure. It has been suggested, though without MS. au­thority, to read “ una causa alte­rave,” which would give the same meaning in a more usual mode of

alterius solutionis origo proficiscitur, (i.) Ubi autem quis quod pure debet sub condicione nouandi animo promisit, plerique putant pendente nouatione solutum repetere posse, quia ex qua obligatione soluat, adhuc incertum sit: idemque esse etiam, si diuersas personas ponas eandem pecuniam pure et sub condicione nouandi animo promisisse, sed hoc dissimile est: in stipulatione enim pura et conditional! eundem debitu­rum certum est.

61. Scaevola libro quinto responsorum. Tutores pupilli quibusdam creditoribus patris ex patrimonio paterno soluerunt, sed postea non sufficientibus bonis pupillum abstinuerunt : quaeritur, an quod amplius creditoribus per tutores pupilli solu­tum est uel totum quod acceperunt restituere debeant, re- for one payment or the other arises, r. But when a man who owes something absolutely, has promised with the intent of novating conditionally, most lawyers think that he can recover what has been paid while the novation is yet in suspense ; because under which obligation he is paying is at present un­certain¹. And that the same is the case also, if you suppose different persons to have promised the same money, (one) absolutely, and (the other), with the intent of novating con­ditionally. But this is a different case. For in a stipulation that is both absolute and conditional, it is obvious that the same man will owe the money².

61. Scaevola. The guardians of a pupil paid certain of his father’s creditors out of his father’s estate: but afterwards made the ward renounce the inheritance, because the goods were insufficient (to pay the debts in full). It is asked whether the creditors are bound to refund the excess of what was paid them by the guardians of the pupil, or the whole of what they spondi, si nihil dolo factum esset, tutori quidem uel pupillo non deberi, creditoribus autem aliis in id, quod amplius sui debiti solutum est, teneri.

wording. That meaning clearly is that if he pays, and is subsequently condemned, he has paid what is due both civilly and naturally; and even if he is acquitted, he has paid what is due naturally.

¹ See Gai. Comm. 3. 179.

² When there are two proinisers, one promising absolutely, and the other conditionally, the latter is not bound at all, not even naturally, till the condition comes to pass: but

when one man, already absolutely bound, promises conditionally, he is clearly bound even prior to the vest­ing of the condition. Hence the cases are not similar, for in the first there is no doubt as to the debtor being bound,though we cannot say under which obligation; in the second, one debtor is bound till the condition vests, and even then is not free; the other is free till the condi­tion vests, and is then bound.

62. Maeciakus libro quarto fideicommissorum. Fideicom­missum in stipulatione deductum tametsi non debitum fuisset, quia tamen a sciente fidei explendae causa promissum esset, debetur.

63. Gaius libro singulari de casibus. Neratius casum re fert, ut quis id quod soluerit repetere non possit, quasi debitum dederit, nec tamen liberetur: uelut si is, qui cum certum homi­nem deberet, statuliberum dederit: nam ideo eum non liberari, quod non in plenum stipulatoris hominem fecerit, nec tamen repetere eum posse, quod debitum dederit.

64. Tryphoninus libro septimo disputationum. Si quod dominus seruo debuit, manumisso soluit, quamuis existimans ei received. I replied: if there was no fraudulent conduct they are not bound to refund to the guardian or the pupil¹; but they are bound to the other creditors for the amount paid to them in excess of their debt.

62. Maecian. When a fideicommissum has been converted into a stipulation, although it was not due, yet since it was promised by the trustee with knowledge, in order that he might carry into effect his trust, it becomes due.

63. Gaius. Neratius mentions an instance where a man cannot recover what he has paid, inasmuch as he has paid what is due, and yet is not acquitted: for example, supposing he who owes a particular slave gives him when he is a statuliber: for he is not acquitted, because he has not made the slave fully the property of the stipulator; and yet he cannot recover him, be­cause he has paid what is due^{[144] [145] [146].}

64. Tryphoninus. If a master pays to a slave after his manumission what he owed him previously, even though (he

viz. that the owner of a slave is under obligation to give him to another person, and instead of doing so makes a testament in which he gives the slave freedom upon some condi­tion : the heir then gives the slave as a statuliber to the promisee.

aliqua teneri actione, tamen repetere non poterit, quia naturale adgnouit debitum : ut enim libertas naturali iure continetur et dominatio ex gentium iure introducta est, ita debiti uel non debiti ratio in condictione naturaliter intellegenda est.

65. Paulus libro septimo decimo ad Plautium. In sum­ma, ut generaliter de repetitione tractemus, sciendum est dari aut ob transactionem aut ob causam aut propter condicionem aut ob rem aut indebitum: in quibus omnibus quaeritur de repetitione, (i.) Et quidem quod transactionis nomine datur, licet res nulla media fuerit, non repetitur : nam si lis fuit, hoc ipsum, quod a lite disceditur, causa uidetur esse, sin autem euidens calumnia detegitur et transactio imperfecta est, repetitio dabitur. (2.) Id quoque, quod ob causam datur, puta quod negotia mea adiuta ab eo putaui, licet non sit factum, quia donari uolui, quamuis falso mihi persuaserim, repeti non posse, pays) under the impression that he is liable to him in some action, he cannot recover; because he has acknowledged a natural obligation : for as liberty is a matter of natural law, and ownership (over human beings) was introduced by the custom of mankind *, the determination of debt or no debt must be settled in the condiction from the natural stand-point..

65. Paulus. In brief, to speak generally of recovery, we must take note that a thing is given either on account of com­promise, or for a reason^{[147] [148], or upon a condition, or for a purpose[149], or without being due: in all of which cases the question of recovery arises. 1. And firstly, what is given by way of com­promise is not recovered, even though there was no matter for dispute[150] : for if there was a suit, the very fact that the suit is abandoned is considered to be a reason. But if vexatious con­duct be plainly detected, and the compromise be void, a recovery will be allowed5. 2. That again which is given for a reason, for instance, because I thought my business had been helped by a man, even though such was not the case, cannot be recovered ; because I meant to make him a gift, although I}

not based upon a real debt or obli­gation, but on an imaginary one. There is at any rate the proxima causa that the defendant gets rid of the annoyance of having to defend.

⁵ C. 1. 18. 6.

(3.) Sed agere per condictionem propter condicionem legati uel hereditatis, sine non sit mihi legatum siue ademptum lega­tum, possum, ut repetam quod dedi, quoniam non contrahendi animo dederim, quia causa, propter quam dedi, non est secuta, idem et si hereditatem adire nolui uel non potui, non idem potest dici, si seruus meus sub condicione heres institutus sit et ego dedero, deinde manumissus adierit: nam hoc casu secuta res est. (4.) Quod ob rem datur, ex bono et aequo habet repetitionem : ueluti si dem tibi, ut aliquid facias, nec feceris. (5.) Ei, qui indebitum repetit, et fructus et partus restitui debet deducta impensa. (6.) In frumento indebito soluto et bonitas est et, si consumpsit frumentum, pretium repetet. (7.) Sic habitatione data pecuniam condicam, non quidem

acted under a false impression. 3. But I can sue by condiction on account of the condition of a legacy or inheritance, to recover what I gave¹, in case the legacy was either not bequeathed to me or was taken aiway from me; since I did not give with intent to make a contract^{[151] [152], seeing that the purpose for which I gave has not come to pass. So too is it, if I have been un­willing or unable to enter upon an inheritance. The same cannot be said, if my slave has been appointed heir upon con­dition, and I have given (something, in order to fulfil the con­dition), and then he enters after being manumitted : for in this case my purpose has been carried into effect. 4. What is given for a purpose is recoverable according to fairness and equity; for example, if I give you something that you may do a certain act, and you do not do it. 5. Both fruits and off­spring must be restored to him who recovers what is not owing, but expenses must be set off. 6. Quality is taken into account, when corn that is not due has been paid ; and if the corn has been consumed, its value can be recovered. 7. So too, when a right of habitation has been given by way of pay­ment, although not due, I can sue for money; but not for the}

tain condition, which condition has failed to take effect. In other words, I did not buy the inheritance or legacy, subject to the risk of ademp­tion; but I paid to have the inherit­ance or legacy, z/'any inheritance or legacy really existed.

quanti locari potuit, sed quanti tu conducturus fuisses. (8.) Si seruum indebitum tibi dedi eumque manumisisti, si sciens hoc fecisti, teneberis ad pretium eius, si nesciens, non teneberis, sed propter operas eius liberti et ut hereditatem eius restituas. (9.) Indebitum est non tantum, quod omnino non debetur, sed et quod alii debetur, si alii soluatur, aut si id quod alius debebat alius quasi ipse debeat soluat.

66. Papinianus libro octauo quaestionum. Haec con­dictio ex bono et aequo introducta, quod alterius apud alterum sine causa deprehenditur, reuocare consueuit.

67. Scaevola libro quinto digestorum. Stichus testa­mento eius, quem dominum suum arbitrabatur, libertate ac­cepta, si decem annis ex die mortis annuos decem heredibus praestitisset, per octo annos praefinitam quantitatem ut iussus amount for which I could have let the house, but for the amount at which you would have hired it¹. 8. If I have given to you a slave who was not due, and you have manu­mitted him ; supposing you did this knowing (that he was not due), you will be liable for his price²; but supposing you did so without knowledge, you will not be liable, except for the services of the freedman and to make over his inheritance³.. 9. Not only is a thing not due when it is not owed at all, but also when it is due to one man and paid to another, or when one man owed it and another pays it, under the impression that himself is the debtor.

66. Papinian. This condiction, introduced on account of fairness and equity, is the usual method for recovering property of one person found without cause in another’s hands.

67. Scaevola. Stichus, having received his freedom under the testament of the person whom he believed to be his master, on condition that he should pay ten aurei a year to his heirs for ten years from his death, gave the appointed amount, as he erat dedit, postmodum se ingenuum comperit nec reliquorum annorum dedit et pronuntiatus est ingenuus : quaesitum est, an pecuniam, quam heredibus dedit, ut indebitam datam repetere et qua actione possit, respondit, si eam pecuniam dedit, quae neque ex operis suis neque ex re eius, cui bona fide seruiebat, quaesita sit, posse repeti, (x.) Tutor creditori pupilli sui plus quam debebatur exsoluit et tutelae iudicio pupillo non imputa- uit: quaero an repetitionem aduersus creditorem haberet, respondit habere. (2.) Titius cum multos creditores haberet, in quibus et Seium, bona sua priuatim facta uenditione Maeuio concessit, ut satis creditoribus faceret: sed Maeuius soluit pe­cuniam Seio tamquam debitam, quae iam a Titio fuerat soluta : quaesitum est, cum postea repperiantur apochae apud Titium debitorem partim solutae pecuniae, cui magis repetitio pecuniae indebitae solutae competit, Titio debitori an Maeuio, qui in

¹ Because the condictio indebiti is for the amount of profit: in quan­tum quis est locupletior tenetur. See D. 12. 6. 26. 12.

² That is to say, if you received him under the belief he was due to you, but learned that he was not due before you manumitted him. If you

w.

took him with knowledge that he was not due, you are liable to the actio furti, as well as the condictio furtiva.

³ Which devolves on you entirely, if he dies childless and intestate, and partially in other cases. See Gaius 3. 40—42.

7

was directed, for eight years. Afterwards he discovered that he was freeborn, and did not pay for the remaining years, and was adjudged freeborn. It was asked whether he could recover as never due the money which he had given to the heirs, and if so by what action? The answer was, if he gave money which was acquired neither by his own labour nor in connection with the property of a person whom he served in good faith, he could recover it. 1. A guardian paid to the creditor of his ward more than was due, and in an action on the tutelage did not charge the money against the ward : I ask whether he would have recovery from the creditor? The answer was that he would^[CLIII]. 2. Titius, having several creditors, and amongst them Seius, assigned all his goods privately to Maevius by sale, in order that Maevius might settle with his creditors; but Maevius paid to Seius a sum of money, as though due, which had already been paid by Titius. The question arose, when receipts were afterwards found in the possession of the debtor, Titius, for part payment of the money, which of the two had the right to recover the money paid, although not due, Titius, the debtor, or Maevius, who was made agent for his own

it pupilli nomine, the latter would have had the condictio. D. 12. 6.

57./r.

rem suam procurator factus est. respondit secundum ea quae proponerentur ei, qui postea soluisset. (3.) Idem quaesiit, an pactum, quod in pariationibus adscribi solet in hunc modum ‘ex hoc contractu nullam inter se controuersiam amplius esse’ impediat repetitionem, respondit nihil proponi, cur impediret. (4.) Lucius Titius Gaio Seio minori annis uiginti quinque pecuniam certam credidit et ab eo aliquantum usurarum nomine accepit, et Gaii Seii minoris heres aduersus Publium Maeuium a praeside prouinciae in integrum restitutus est, ne debitum hereditarium solueret, et nec quicquam de usuris eius­dem sortis, quas Seius minor annis uiginti quinque exsolueret, repetendis tractatum apud praesidem aut ab eo est pronuntia­tum : quaero, an usuras, quas Gaius Seius minor annis uiginti quinque quoad uiueret creditori exsolueret, heres eius repetere possit, respondit secundum ea quae proponerentur condici id,

benefit? It was answered, that according to the circumstances stated, the one who made the second payment could recover.

3. It was also asked whether the pact usually introduced into settlements of account¹, “that on this matter there shall be no further controversy between the parties,” prevents recovery. It was answered that nothing was stated which would prevent this^{[154] [155]. 4. Lucius Titius lent a certain sum of money to Gaius Seius, who was under twenty-five years of age, and received from him a certain amount by way of interest; and the heir of Gaius Seius, the minor, obtained from the governor of the pro­vince restitutio in integrum against Publius Maevius, in order that he might not have to pay the inherited debt ■ but there was no mention made before the governor, and no decree issued by him, as to the recovery of the interest on the said principal, which Seius had paid whilst under twenty-five years of age. I wish to know whether the heir can recover the interest which Gaius Seius the minor paid to the creditor during his life-time. It was answered, that according to the case pro­pounded there could be no condiction for what the dead man}

metic, but does not affect the ques­tion of the account being legally due or not due.

quod usurarum nomine defunctus soluisset, non posse, item quaero, si existimes repeti non posse, an ex alio debito heres retinere eas possit, respondit ne hoc quidem.

had paid by way of interest^[CLVI]. I also wish to know, if you think there could be no recovery, whether the heir can retain it out of another debt. The answer was that not even this could be done.

DE CONDICTIONE SINE CAUSA.

D. 12. 7.

1. Ulpianus libro quadragensimo tertio ad Sabinum. Est et haec species condictionis, si quis sine causa promiserit uel si soluerit quis indebitum, qui autem promisit sine causa, con­dicere quantitatem non potest quam non dedit, sed ipsam obligationem. (1.) Sed et si ob causam promisit, causa tamen secuta non est, dicendum est condictionem locum habere. (2.) Siue ab initio sine causa promissum est, siue fuit causa promittendi quae finita est uel secuta non est, dicen­dum est condictioni locum fore. (3.) Constat id demum

1. Ulpian. The variety of condiction available, if any one has promised without cause, can also be employed, even when a person has paid what is not due^[157]. But he who has (merely) pro­mised without cause cannot bring a condiction for an amount, because he has not given one, but must bring one for (rescis­sion of) the obligation. 1. And again, if he promised for a cause, and the cause has not come to pass, we must allow that this condiction will apply². 2. So, whether the promise was originally without cause, or there was a cause for promising, which came to an end or did not take effect, we must allow that there is opportunity for this condiction. 3. It is well posse condici alicui, quod uel non ex iusta causa ad eum per- uenit uel redit ad non iustam causam.

2. Idem libro trigensimo secundo ad edictum. Si fullo uestimenta lauanda conduxerit, deinde amissis eis domino pre­tium ex locato conuentus praestiterit posteaque dominus in- uenerit uestimenta, qua actione debeat consequi pretium quod dedit? et ait Cassius eum non solum ex conducto agere, uerum condicere domino posse : ego puto ex conducto omni­modo eum habere actionem : an autem et condicere possit, quaesitum est, quia non indebitum dedit: nisi forte quasi sine causa datum sic putamus condici posse: etenim uestimentis inuentis quasi sine causa datum uidetur.

3. Iulianus libro octauo digestorum. Qui sine causa established that a man is liable to this condiction only on account of something which has come to him for no proper cause¹, or for a cause which becomes an improper cause.

2. Ulpian. If a fuller contracted to scour garments, and was sued ex locato when the garments were lost, and paid the price to the owner, and the owner subsequently found the garments; by what action ought he to recover the price which he paid ? Cassius says that he can not only sue ex conducto, but can also bring a condiction against the owner^{[158] [159]. I think he certainly has the action ex conducto*; but it has been doubted whether he can also bring a condiction, seeing that he did not give what was not due: unless, indeed, we think that there can be a condiction on account of the gift being without cause, for when the garments are found it seems to have been given without cause.}

3. Julian. Those who bind themselves without cause,

condictiones.

³ Pothier remarks that in the actio ex conducto, as in all other bonae fidei actions, there can be a claim on the implied under­taking “dolum malum abesse, ab- futurumque esse.” The locator there­fore who attempts to keep both the money he received and the gar­ments he has recovered is guilty of dolus.

obligantur, incerti condictione consequi possunt ut liberentur: nec refert, omnem quis obligationem sine causa suscipiat an maiorem quam suscipere eum oportuerit, nisi quod alias condic­tione id agitur, ut omni obligatione liberetur, alias ut exonere­tur : ueluti qui decem promisit, nam si quidem nullam causam promittendi habuit, incerti condictione consequitur, ut tota stipulatio accepto fiat, at si, cum quinque promittere deberet, decem promisit, incerti consequetur, ut quinque liberetur.

4. Africanus libro octauo quaestionum. Nihil refert, utrumne ab initio sine causa quid datum sit an causa, propter quam datum sit, secuta non sit.

5. Papinianus libro undecimo quaestionum. Auunculo nuptura pecuniam in dotem dedit neque nupsit: an eandem repetere possit, quaesitum est. dixi, cum ob turpem causam dantis et accipientis pecunia numeretur, cessare condictionem et in delicto pari potiorem esse possessorem : quam rationem can by condictio incerti' obtain their release : and it matters not whether a man takes on himself an obligation that is alto­gether groundless or one greater than he ought to undertake, except that the object of the condiction is in the one case, that he may be released from the whole obligation, in the other that he may be relieved. For instance, a person who has promised ten aurei, if he had no cause at all for promising, obtains by means of the condictio incerti an acquittance from the entire stipulation; but if he promised ten when he ought to have promised five, he will obtain by the condictio incerti a release from five.

4. Africanus. It is immaterial whether a gift be originally without reason or the reason for which it was made do not take effect.

5. Papinian. A woman, purposing to be married to her uncle, gave him money as a marriage-portion, and then was not married to him. It was asked whether she could recover it. I replied, when money is paid for a reason disgraceful both to giver and receiver, the condiction will not apply; and the turpitude being equal, the possessor has the better title. fortassis aliquem secutum respondere non habituram mulierem condictionem: sed recte defendi non turpem causam in pro­posito quam nullam fuisse, cum pecunia quae daretur in dotem conuerti nequiret: non enim stupri, sed matrimonii gratia datam esse. (1.) Nouerca priuigno, nurus socero pecuniam dotis nomine dedit neque nupsit, cessare condictio prima facie uidetur, quoniam iure gentium incestum committitur: atquin uel magis in ea specie nulla causa dotis dandae fuit, condictio igitur competit.

And following this reasoning, one might perhaps decide that the woman cannot have a condiction; but I think it might be fairly maintained that in the case proposed the reason was not so much disgraceful as void, since the money which was given could not be converted into a marriage-portion; for it was not given in view of illicit cohabitation, but in view of marriage *.

1. A stepmother gave money as a marriage portion to her stepson, or a daughter-in-law to her father-in-law ; and did not marry him. At first sight it appears that the condiction has no place, since incest, recognized as such by the jus gentium, is committed. But even in this case, there was rather no cause (than a disgraceful cause) for giving the marriage-portion; therefore the condiction is allowed.

¹ The question suggests itself, did the woman know that her intended husband was her uncle; and sup­posing she knew this, was she also aware of the law forbidding such a marriage? Some commentators say, if she knew the fact and the law, she gave for the purpose of illicit coha­bitation, therefore ob turpeni causani, end hence cannot recover. They : dmit, however, that if she knew the fact and not the law, she pro­bably has recovery, for her gift is then merely sine causa and not ob tuipem causam. But Azo, and the majority of commentators, are right in saying that these considerations

are immaterial: the woman gave the money to be dos, and dos can only exist in the case of marriage, not in the case of illicit cohabita­tion ; so her knowledge or ignorance is immaterial. The cases in § 1 shew conclusively that Azo’s view is the correct one: a woman is pre­sumed to know the principles of the jus gentium, whatever be the extent to which she is excused ignorance of the jus civile; she can scarcely be ignorant of the fact that a man is her father-in-law or stepson, and yet, although acquainted with both fact and law, she is allowed the con- dictio sine causa.