Datio in solutum
It has been stated above that the debtor was obliged to perform what he owed under the contract. If he gave something else in lieu of what he owed, the obligation was not discharged.
The creditor was, however, free to accept the substitute performance. If he decided to do so, such datio in solutum had the same effect as the ordinary solutio: it released the debtor from his obligation.[3858] [3859] Problems could arise if, for instance, a debtor owing money gave a movable object in solutum. Acceptance of that object by the creditor terminated the obligation. But what if the creditor was subsequently evicted due to the fact that a third party turned out to have a better title? According to Marcianus, he was able to fall back upon the original obligation: "Si quis aliam rem pro alia volenti solvent et evicta fuerit res, manet pristina obligatio.1,47 In other words, the (original) obligation fell away only if the alternative performance led to full and final satisfaction of the creditor. There are, however, texts in the Corpus Juris, according to which even an ultimately unsuccessful attempt to satisfy the creditor appears to have had the effect of terminating the original obligation, for in the event of an eviction the creditor was not allowed to sue on the original debt but was granted an actio empti utilis."Si pracdium tibi pro soluto datum aliis crcditoribus fuerat obligatum, causa pignoris mutata non est. igitur si hoc iure fuerit evictum, utilis tibi actio contra debitorem compctit. nam eiusmodi contractus vicem venditionis obtinet."4H
The datio in solutum is seen here as a kind of sale, for the creditor is treated as if he had purchased the object given to him in lieu of payment of the original debt. Codex 8, 44, 4 and a variety of other texts expressing similar ideas[3860] are probably interpolated,[3861] for it was Justinian who tried to bring datio in solutum into line with the contract of emptio venditio.[3862] Nevertheless^ in the history of the ins commune they have exerted great influence.[3863]' This is apparent, for instance, from the rule adopted in the BGB:
"If a thing, a claim against a third party, or any other right is given in lieu of fulfilment, the debtor shall grant warranty in the same manner as a seller, against a defect in title and against a defect in the thing."[3864]
It is very doubtful, however, whether this construction correctly reflects the intentions of the parties, for the average creditor can hardly be taken to have given up his claim in return for a performance which might still be taken away from him.[3865]
II.
More on the topic Datio in solutum:
- Datio in Solutum
- 1. Indebitum solutum
- Indebitum solutum and unjustified enrichment
- Condictio indebiti
- Forfeiture in the Second Century ad
- "Solutio propria", "in praecisa forma et specie obligationis"[3885] (to use the terminology of the European ius commune) has always been, and still is, the most important way of terminating obligations.
- 1. Solutio per aes et libram and acceptilatio as actus contrarii
- Subject Index
- Condictio ob turpetn vel iniustam causam
- Condictio ob turpem (vel iniustam) causam
- Quasi-contractual and quasi-delictual obligations
- 1. Condictio causa data causa non secuta
- Instances of "weak** enrichment liability in Rome
- The consensual element of mutuum