Instances of "weak** enrichment liability in Rome
Roman law knew this restricted version of enrichment liability only in certain rather exceptional situations.[4581] One of them has already been referred to briefly: the case of the pupillus who had concluded a contract without the authority of his tutor.
According to a rescript of the Emperor Antoninus Pius, he could be held liable "in quantum locupletior factfus] est";[4582] [4583] and when the question arose which point in time was relevant in order to establish the extent of his enrichment, the answer was given that the moment of litis contestatio had to be referred to:"In pupillo, cui sine tutoris auctoritatc solutum est, si quaeratur, quo tempore sit locupletior, tempus quo agitur inspicitur."3"5
The same applied when spouses reclaimed what they had given to each other in contravention of the prohibition of donationes inter virum et uxorem.3"6
"[N]am ius constitutum ad eas donationes pertinet, ex quibus ct locupletior mulier et pauperior maritus in suis rebus fit"[4584]—
this is how the range of transactions covered by the prohibition was usually described and the element of "locupletior" (enrichment) obviously played a crucial role.[4585] But it was also relevant in determining what the impoverished party was allowed to claim back. Again, therefore, the question was asked "[q]uod autem spectetur tempus, an locupletior [est facta]" and, again, it was held, in response, "verum est litis contestatae tempus spectari oportere".[4586]
3.
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