INTRODUCTION.

pears to have been mutilated by the compilers of the Digest, and does not harmonize with other statements of Ulpian.

the proof, here barely indicated, is worked out with the utmost elaboration and detail by Savigny¹. With his view accords the well-known passage where Justinian speaks of “ actiones in personam, per quas intendit adversarium ei dare facere opor­tere et aliis quibusdam modis'f the first words, “dare facere oportere,” referring to the condictiones, the final words to all other personal actions; viz.

other class of civil actions on actiones, wherein the words “ ex the “dare facere oportere³.”

¹ Rom. Recht. App. XIV. §§ 25, 26.

² Just. 7»jZ. 4. 6. 1. Gaius uses the word praestare to denote the same thing.

³ Savigny also points out (Rom. Recht. § 218 and App. xm, xiv), that although every action must in its essence be strictijuris or bonae fidei, yet the actual appellations are never used except in reference to personal actions on contract. All civil actions in rem, he says, are essentially bonae fidei, and so also are all honorary actions, whether in rem or in personam ; civil actions on delict are as uniformly and essen­tially stricti juris: but actions on contract may be either the one or the other, prior to positive enact­ment on the subject; and, no doubt because of this inherent possibility, such actions are carefully classified in the Sources into the stricti juris actiones, more commonly styled con- dictiones, and the bonae fidei actiones (Just. Inst. 4. 6. pr., with which compare D. 12. 3. 5. 4, Inst. 4. 6. 30). In the former variety of actions on contract, as in all other actions which are essentially stricti juris, the judex, under the formulary sys­tem, had a very limited power; in the other variety he had a larger discretion, to decide according to equity. This division of all actions,

contract, viz. the bonae fidei fide bona” were superadded to

into those which are in their nature stricti juris and those which are in their nature bonaefidei, corresponds with Cicero’s classification of judicia and arbitria, mentioned in Pro Rose. Com. 5 and De Off. III. 15 and 17; for although, if the passage first cited stood alone, we might imagine that all actions on the Civil Law were termed judicia, and all actions on the Edict arbitria, yet, reading the three extracts together, we per­ceive that a judicium was a pro­ceeding under some lex or senatus consultant, and therefore of neces­sity a Civil Suit, in which the judex was tied down to the letter of his formula; whereas an arbitrium was a proceeding which might be either on a lex, or a senatusconsultum or on the Edict, wherein the judex, called in such cases the arbiter, had greater latitude, his formula em­powering him to decide ex fide bona, ut inter bonos bene agier oportet, quod aequius melius (Cic.

Savigny has also fully discussed the origin and nature of Condictiones, and investigated the reason for their being stricti juris. He thinks that the Roman Law began, first of all, to pro­tect property and rights inseparably connected with property, i.e. rights correlating to duties mainly negative, by allowing an actio in rem; and next proceeded to protect rights strikingly analogous to property rights, though originating from contract or quasi-contract. This it did by means of the Condiction ; extending the same remedy afterwards to injuries to rights of a kind akin to property-rights, in cases of delict or mistake, and on other grounds of obligation. For, he says, when the Law recognizes contracts or quasi-contracts, from that moment it takes on itself the duty of protecting certain rights of each con­tractor against the other contractor; which rights usually cor­respond to positive duties; whereas proprietary rights gene­rally correlate with negative duties. If, for example, in a contract or quasi-contract detention is parted with, but property retained, the Law can afford protection to some extent by simply allowing a real action, as when a lessee detains beyond the proper time land which has been let to him, and so violates his negative duty to abstain from interference with

_ _T Fler formulam petitoriam.............................................................. Arbitrium

. i_rer sponsionem (i.e. by con­

version into an actio in per­sonam strictijuris}..................................... Judicium

rStricti juris r Ex contractu J {Condictio}...Judicium

et quasi i

*-Bonae fidei.........................................................

^LIn personam-

Ex delicto

^u et quasi............................................................................................... Judicium

I)

In rem..............................................................

Arbitrium

Arbitrium

Arbitrium

_rEx contractu

I et quasi.................................................

In personam-]

I Ex delicto

l et quasi................................................

o......................................................................... Cognitio... Extraordinaria.

Ü Neither Judicium nor Arbitrium,

a for the Magistrate issued no Formula. another’s property. But there are many possible and intended consequences, even of transactions with regard to property, which a real action cannot protect; in a lease, for example, the rent, if unpaid, must be recovered by some other process, for payment of rent is a positive duty, and incumbent on a defi­nite person, not on the whole community. The Law, there­fore, in this and all other cases where there is a manifest wrong for which the real action is useless, has in course of time granted a personal action, on the ground that good faith must be observed, or, in other words, that he who causes a lawful expectation shall not be allowed to disappoint it; for such an expectation is in some degree property, or is analogous to property. When property has been retained in a contract, and only detention parted with, we have a partial remedy in the real action; but this, as already noticed, is not always suf­ficient to give complete redress in case of wrong. There are, however, two other classes of cases, of even greater frequency, where a reasonable expectation is raised, and the real action is entirely inapplicable, viz. (r) when there is no giving up of any property or detention at all, (2) when both property and de­tention are parted with, but for a special purpose and not as a free gift.

forced by condiction ; therefore the early Law of Rome refused a remedy to those who had neglected an ob­vious safeguard. Other writers as­sert, what no doubt is true, that reference to arbitration is a primitive custom antecedent to law, and ar­gue hence that early law would adopt it as a reasonable mode of settling dispute; and this seems the more probable view to take.

Law can only lay down the simple rule, that each ought to do for the other what his words or actions would lead that other to expect, and this fidelity to engagements is the technical Bona Fides of Roman Law. Voet’s description of bona fides is as follows : “ in matters which lay an obligation on each party it is difficult, owing to the multiplicity of details, to state every point in the agreement, even when men of business­habits are the parties; it is therefore the rule that anything unexpressed in the agreement shall be supplied by the judex in accordance with fairness and equity, over and above what has been clearly defined'.” Savigny’s theory is very much to the same effect, for he lays down that in such instances each party may think his own view of bona fides the correct one, whilst admitting the possibility of error in his estimate: he is prepared therefore to submit the case to the decision of an umpire, and the Law provides the machinery for appointing one, who, from the nature of the case, can take into account all circumstances which on principles of good faith affect the rights and duties of the parties^{[6] [7].” This then is the origin of bonae fidei actions, or, as Cicero styles them, arbitria: which are applicable (inter alia) to those cases of breach of contract}

(1) where neither detention nor property has been parted with,

(2) where detention has been parted with and not property, but restitution of detention is not the whole of the remedy needful to be provided.

ex mora to the plaintiff; D. 22. 1. 33. 2: D. 16. 3. 24; and entertain exceptions not specially pleaded before litis contestatio, especially the exceptio pacti, or exceptio doli; D.

18. 5. 3 : D. 24. 3. 21, &c.

side a. principal obligation, and on the other a consequential obligation, the first enforceable by actio directa, the second by actio contraria.

We pass now to the other case suggested above, where the Law ought to protect expectation, viz. when both property and detention have been parted with, but not to create a simple gift. Here one person divests himself of his proprie­tary rights in favour of another, on the understanding or in the expectation that this other shall in return give him a different thing, or perform for him some specific service¹. It is clear that in this case again, a real action is useless, for the creditor, however much he may be deceived, has, of his own free will, parted with his property. And yet he is suffering a disappoint­ment, strikingly analogous to that of a man whose property is kept from him; for his property, if he gave a mutuum, is dimi-, nished to the same extent exactly as the property of the other is increased ; or if the res credita was that some different thing would be given or done in return for his alienation of property, the gain of the other party, if not what the donor loses in fact, is what he loses in expectation, and the two, if the contract was a reasonable one, may be presumed to be equivalent. Hence, he requires something akin to specific restitution, a return of equal value, at any rate ; no circumstance requires to be con­sidered beyond the fact of the agreement, and so the judex has no discretionary power, but must award either the whole of what is claimed or nothing at all. Hence arise the condictiones', or, at any rate, those afterwards designated condictio certi, or condictio si cerium petatur, and condictio causa data causa non secuta. And it is most important to notice, that because one party alone can suffer disappointment of expectation, the other having received his inducement and expecting nothing further, therefore the condictiones are of necessity unilateral and stricti juris; which marks are characteristic not only of the two condictiones just named, but of all the other condictiones which ^{[8] [9] were afterwards brought into use, on states of fact analogous to those which gave rise to the condictions of earliest date.}

But we cannot consider what these new condictions were, without first, or rather simultaneously, observing how the ori­ginal condictions were extended in their application to new cases.

We have said that the earliest condictions were allowed when a man, not intending a gift, parted freely with property and detention ; but it is highly probable that this statement ought to be still further restricted, and that we ought to believe that at first mutuum alone, in its strictest acceptation of a loan of money, was brought under the protection of the Condiction. The wording of the rubric of D. 12. 1, taken in connection with its contents, indicates this; for the heading of the title speaks generally of res creditae, and yet the excerpts deal, with very few exceptions, with loans of money. There are certainly passages here and there in the Title which indicate that condictions can be brought to enforce any lawful expec­tation, whether certain or uncertain, arising from the fact of another being enriched by the diminution of our property, but the bulk of it deals with loans in kind, and in fact almost entirely with loans of money^[10]. Yet, as our confidence in another’s promise to return money is in nature identical with our confidence in his promise to return res fungibiles of any description, and that again is closely connected with confi­dence in his promise to return a specific thing, or one thing as the equivalent for another, it would seem highly probable (1) that the condictio was at a very early date made applicable to mutuum in all its varieties, and (2) that the condictio causa data causa non secuta, or, as Savigny calls it, the condictio ob causam datorum, sprung into existence after no long interval, to remedy the wilful or accidental non-performance of a contract of exchange ; its object being not to obtain what was promised,

sit mutua pecunia, sed contractus, creditores accipiuntur.” See also D. =0. 16. 11 and 12 : D. 5. 1.20: D.

44- 7· 5· 2·

but to recover money, other res fungibiles, or even a specific thing, given in consideration of the unfulfilled promise. Pro­bably this latter condictio had no distinguishing appellation at first, and at any rate it was always regarded, in conformity with fact, as a mere branch of the old condictio ; and hence we see what is meant in such passages as D. 12. 1. 1. 1, or D. 12. 1. 4. 1, where we read: “ideo sub hoc titulo Praetor et de commodato et de pignore edixit,” and “res pignori data pecunia soluta condici potest.” See also D. 16. 3. 13. 1.

Hence we start with two condictions :

(A). Condictio, simple and without epithet, for the reco­very of a mutuum, or a specific thing bailed;

(B). Condictio causa data causa non secuta, for the reco­very of what we gave, when the other party fails to give us a different thing which he promised in exchange.

But, the principle on which these are based being not so much that there has been a promise, as that our patrimony has been unfairly diminished to the increase of the patrimony of another person, we find that the scope of the original con- dictions was extended, and that new condictions were intro­duced in certain analogous cases.

(C). The condictio simple was extended to cases where detention had been delivered without property, and the bailee wrongfully assumed property, by consumption or sale of the goods in his charge¹ : for it was contrary to natural equity that the bad faith of the debtor should put him in a better position than the confidence of the creditor would have done. Savigny says “ the bailee here destroys the bailor’s vindicatio, and so the bailor receives a condictio instead^{[11] [12].” This conversion of de­tention into property invariably gives rise to a condictio, and}

ponere,” which clearly signifies that a depositum does not of itself give rise to a condiction, but to a vindi­cation ; fraud, however, on the part of the depositarius may convert the depositum into a creditum, and then there is a condiction.

therefore may occur in the cases of depositum, conimodatum, pignus, mandatum, societas, tutela, locatio, or negotia gesta ’.

(D). A condictio proper, on the same ground of one person being unfairly enriched at the expense of another, was also granted in the case where a bona fide detainor of my property had consumed it, or alienated it, and was profited thereby; although equity required that in this case, where both parties were innocent, the condiction should not be for the amount of my loss, but for the amount of the other's profit.

(E). The condictio proper was also extended (but for a totally different reason, viz. the will of the parties, without any reference to one gaining through the other’s loss) to cases where engagements of a definite character, but having in them­selves no guarantee beyond good faith, were put by consent of the parties under the sanction of some form to which the Law attached a binding force, viz. nexi obligatio or expensilatio in olden times, stipulatio throughout the classic period of Roman Law, and litterarum obligatio in the days of Justinian.

(F). For a connected reason, the condictio proper became the process for recovery of a legacy per damnationem, and there­fore after Nero’s S. C. (Gai. Comm. 2. 197) for the recovery of any legacy; not because the legatee had lost property and the heir profited thereby; for the legatee had never had either detention or property of that which was bequeathed to him ; but because in ancient times testaments were celebrated per nexum, and therefore the heir was bound by a formality to which, as familiae emptor, he had given personal consent. This obligation still remained, because of its intrinsic equity, when the familiae emptor was no longer the heres, and when nexum was no longer part of the formalities of making a testament.

(G). A condiction was also granted when detention and property had been freely parted with, but rather through mistake or the wrongful dealing of another, than through confidence, and so arose the condictiones indebiti, sine causa, and ob turpem vel injustam causam. on which we shall have

¹ See D. 12. 2. 28. 4: D. 17. 2. 45—47: D. 27. 3. 5 : D. 44. 2. 5: D. 44. 7· 3+· ²· more to say hereafter; but which all agree in this, that the causa, or ground, is a mistake of some sort, i.e. either of fact or law. These condictions could be brought for recovering the exercise of rights, although the Condiction proper could only be brought for the possession of property: and the reason is obvious, the simple Condiction is for what is lent; and property alone, not rights, can be the matter of a loan; whereas rights, equally with the possession of property, can be parted with in mistake.

So far, all the condictions have arisen one out of the other, through a simple connection of ideas; but two still remain which are anomalous. These are the condictio furtiva and the condictio ex lege.

(H). The condictio furtiva, more properly designated condictio ex causa furtiva, was introduced “odio furum” (Gai. 4. 4), in derogation of strict principle. A condiction is properly an action to supply the want of a vindication, which is required by justice, but impossible in fact. If, then, a thief is in possession of a stolen article, seeing that vindication is possible, there ought logically to be no condiction. If the article has been alienated or consumed, a condictio sine causa is possible. But it is so difficult to know whether a stolen article has or has not been alienated or consumed, that in the particularly heinous case of theft a condictio furtiva is allowed, -without regard to the question of a vindicatio being possible or impossible : and this condictio can be brought even against the wrongful possessors of immoveable property, which, being by nature indestructible, is always the proper subject for a vindication. D. 47. 8. 2. 26: D. 12. 3. 1. 1.

It is clear that this action arises not on the delict (the foundation of the actio furti), but on a quasi-contract insepa­rable from a delict, viz. on the duty to restore, which is incumbent on any man who wrongfully enriches himself at another’s expense..

(I.) Lastly, another anomalous condiction, the condictio ex lege, was allowed by a standing rule of Roman Jurisprudence, when a nova lex (which some understand to mean a lex passed at a later date than the XII. Tables, but Savigny, more reasonably, to mean one passed after the Lex Aebutia had established the formulary system) provided a remedy, but said nothing about the procedure to enforce it. The remedy then was a condictio ex lege; a condiction, that is to say, and not a bona fide action; and a condiction falling under none of the classes hitherto mentioned, but bearing the name of the lex which it is employed to enforce^[XIII].

To sum up our results :—the proper foundations of a con­diction are seen to be

(1) the benefit of one man’s property at the expense of that of another without lawful cause : and

(2) the inapplicability of the remedy by vindicaiio.

The benefit of one man’s property at the expense of the other’s may either arise from

(fl) express engagement unfulfilled,

(i) the engagement being in consideration of an actual benefit (A, B, above);

(ii) the engagement being upon the fiction of a benefit (E, above);

{fi) fictitious engagement, coupled with actual benefit (F, above);

(i) error, fraud or violence (G, above);

(fi) consumption or alienation,

(i) following on lawful detention, i.e. detention taken with the consent of the owner or through error, the con­sumption or alienation being either erroneous or fraudulent (C, D, above);

(ii) following on unlawful detention, i.e. detention

taken through fraud or violence, the consumption or alienation therefore being also fraudulent (G, above). ·

The improper foundations of condiction are

(to the sum of money claimed, if the defendant proved unsuccessful; whilst the amount of the restipulation was forfeited by a de­feated plaintiff.

In a condictio triticaria proper, there was no sponsion or restipulation, but the “quanti ea res erit” which the judex was directed to award was not the market value of the thing claimed, as in the condictio certi, but the value it had for the plaintiff.

In a condictio incerti, the improper condictio triticaria, the judex still more certainly could award the value of the plaintiff’s loss or inconvenience, for, as the object of the action was an indeterminate sum, there was no market value to consider.

I now proceed to analyze the contents of the Titles of the Digest which treat of Condictions.

The title 12. i may be regarded as treating, firstly, of the general rules applicable to every condiction wherein a definite claim is made, “de rebus creditis si certum petatur;” secondly of the condictio certi, technically and arbitrarily so designated, which is directed to the recovery of a definite sum of money.

Hence we may tabulate its contents as follows :

I. A condictio, certi or triticaria proper, is founded on a creditum certum.

i. Therefore, it arises only when

important therefore to distinguish mutuum from creditinn: that being settled, the further distinction between a loan of money and a loan of other fungible articles is apparent.

Now the differences between mutuum and credi­tum are these.

1. In mutuum the return is to be made in gcnere,

not in specie, and not of one thing for another;

2. In mutuum the creditor must part with pro­

perty, and cannot create the obligation by such fictions as those in I. (/3) above.

The condictio certi therefore arises

r. On voluntary loan of money :

(a) When possession and property in money have been delivered, actually, or brevi marni or longa manu:

(/?) When the person who delivered possession and property was owner of the money delivered, or was acting with the consent of the owner, either express or implied, as in the case of a slave administrator:

(7) When there was a present intention on both sides to create a mututnn;

whether the donor’s intent was voluntary or in fulfilment of a prior obligation ;

and even if the receiver’s intent was to take the mutuum from another person :

2. On the fiction of mutuum, when a definite sum of money is the matter of stipulation or other formal contract,

but the stipulation must be certain and uncon­ditional :

12. 1. 2. pr.

₃:12.r.i₃.

2 :12.1.22 :

12. 1. 2. 2—4 :

12. 1. 9. 9:

12. 1. 10:

12. 1. 11.

pr. and 1:

12. 1. 15:

12. 1. ₃o :

12. 1. 16:

12. 1. 11. 2 :

12. 1. 41 :

12. 1. 18: 12.

1. 19. pr.:

12. 1. 20:

12. 1. ₃2:

12. 1. 24:

12. 1. ₃6 : 12.

1.37: 12.

1. ₃8: 12.

!· 39 ^:

3. On involuntary mutuum, which arises when

The title 12. 4 treats of the condiction designated

Condictio causa data causa non secuta.

This condiction can be employed in the case where he who has given money or any other article by w^ray of exchange, wishes to have again the equivalent in value of what he parted with, or sometimes to have the actual thing itself. Hence, clearly, the condiction only applies to certain varieties of ex­change, namely those comprehended under the heads do tit des, do ut facias and do ne facias; for since there is no possible reversal of acts, although there is a possible recovery of money or goods, the condiction is useless in an exchange facio ut des, facio ut facias or facio ne facias. In these last-named cases the actio in factum prcescriptis verbis is the appropriate remedy. See D. 19. 5. 5. 3: 19. 5. 25.

This condiction causa data causa non secuta, if brought to recover money, may be considered as an instance of condictio certi, if to recover any other thing, fungible or specific, as an instance of condictio triticaria. It is, however, usually employed to recover money, and some hold, though it is difficult to follow their reasoning, that the appropriate condiction to recover any thing other than money, re non secuta, is not this condiction, but a simple condictio triticaria. It may here be observed in connection with the phrase just used, re non secuta, that the condiction ought in strictness to be named condictio causa data re non secuta ; for causa in its more accurate use is employed to denote what is past or present, res what is future, as Paulus and Pomponius tell us in D. 12. 5. 1, 12. 6. 52 and

12. 6. 65; so that causa very much resembles the “consideration executed” of English Law, res the “consideration executory.”

The condiction we are here discussing clearly does not arise, strictly speaking, upon the contract of exchange, but upon a quasi-contract inseparable from the contract ·, for the action on the contract would, of course, be for specific performance, whereas the action on the quasi-contract is for restitution of what was given, supposing the fulfilment of the contract to become impossible, or the person who has parted with property to change his mind before his doing so will cause detriment to the other contractor.

The general principle on which the condiction is allowed is therefore analogous to that supporting the condictio certi: for in the latter the suit can be brought, because an expectation founded on a promise is disappointed; here because, though no promise is broken, yet the donor has a right to expect the receiver to act as if he had promised to restore in case of default, error or mistake.

The contents of D. 12. 4 may be thus tabulated :

but may be brought to recover a specific thing,

12. 4.5. 1—3:

12. 4. 7. i:

12. 4. 4= 12.

4. 10 :

12. 4. 7. i,

12. 4. 12.

or to rescind an act ;

and if it is brought for a specific thing, the fruits also are recoverable.

In D. 12. 5 we have a discussion of the

Condictio ob turpem vel injustam causam.

This condiction applies when a person who has given money to another for some consideration which is disgraceful to the receiver, but not to himself, wishes to recover what he has given. Here the disappointment of expectation generally takes the form that a man, who has by law a right to some­thing, is subjected to extortion and compelled to pay money for that which he was justified in expecting to receive gratui­tously : or that he has to pay money to induce another to do his lawful duty, which he might have been expected to do with­out any inducement beyond his respect for the law. The dis­appointment, for which the condiction provides, being thus understood, there can clearly be recovery, whether the purpose for which the money was given has or has not been carried into effect; and herein the condictio differs from that causa data causa non secuta; which, as the consideration was a proper one, can only succeed when the consideration has failed. D. 12. 5. 1.

IV. The condietio oh turpem vet injustam causam arises

(a) When the plaintiff has parted with property 12. 5. 1 : 12. for a purpose disgraceful to the receiver ; ^.i.pr. and

t : 12. 5. 4. 2: I2.5.6:

but not disgraceful to himself; 12. 5. 2. 2 :

12. 5.3:12.

5.4. 1 and 2:

or when the transfer is the direct or indirect 12. 5. 7. result of violence.

(/3) It succeeds whether the purpose has been ef- 12. 5. 1.2: 12. fected or not 5. 5 : 12. 5.

9: 12.6.36.

(7) If the purpose of the transfer is disgraceful to both parties, the condiction cannot be brought.

12. 5. 2. 2 :

12.5.3: 12.

5.4:12. 5.8.

I2.5. 1. 2: 12.

5.5:12.5.6.

It is brought to recover what was given.

In D. 12. 6 is discussed the

Condictio indebiti.

This condiction arises on a quasi-contract, and its object is the recovery of that which, through the giver’s ignorance, has been parted with, although due neither legally nor naturally. The condictio indebiti can therefore be brought not merely for the recovery of money or goods, but also for the recovery of possession and for the rescission of acts ; and as the two last- named objects may not be attainable specifically, or not attainable in such wise as to compensate the plaintiff, who consequently desires a money equivalent to be estimated by the judex, the condictio indebiti may not only be a variety of condictio certi or triticaria, in the proper sense, but may also take the form of condictio incerti, as we see from D. 12. 6. 22. 1 : D. 12. 6. 40. 1.

The condiction being grounded on the ignorance of the giver, we have to consider whether the ignorance intended is of fact or of law. Ignorance of fact is undoubtedly a ground for the condiction ; but opinions differ as to ignorance of law. Voet quotesC. 1. 18. 10: “cum quis jus ignorans indebitam pe­cuniam solvit, cessat repetitio ; per ignorantiam enim facti tan­tum repetitionem indebiti soluti competere tibi notum est.” But Huber holds that this apparently conclusive dictum is to be read in connection with D. 22. 6. 7: “juris ignorantia non pro­dest acquirere volentibus, suum vero petentibus:” and he thinks that a man who brings a condictio indebiti may be considered suum petere. He allows that it is not so stricto jure, as a con­diction is never, or very seldom, brought to preserve property which is wrongfully possessed, but rather to obtain the equiva­lent of property which has been without just cause alienated^[XIV]; and yet he maintains that although the condiction is techni­cally directed to the recovery of debituni rather than suum, still the Roman Jurists do not pay attention to this technicality, but usually speak of debituni as a variety of suum. We have, for instance, he says, in D. 42. 8. 6. 6 : “ eum qui suum reci­piat...hoc est, eum qui quod sibi debetur receperat;” and in D. 44. 4.5.5: “ si eum qui volebat mihi donare supra legiti­mum modum delegavero creditori meo, non potest adversus petentem uti exceptione, quoniam creditor suum petit.” The truth seems to lie half-way between the view of Huber and that of Voet; for D. 12. 6. 26. 12 and D. 12. 6. 64 seem clearly to refer to an error in law, and the same appears pro­bable in the case suggested in D. 12. 6. 59 and in other ex­cerpts ; by comparison whereof the result is arrived at that

(1) if payment be made in ignorance of a legal rule accordant with natural equity, there is recovery:

(2) if payment be made in ignorance of a legal rule in conflict with natural equity, there is no recovery.

The rules of D. 12. 1 may be thus tabulated :

The Condictio indebiti arises when the plaintiff’s property has come into the defendant’s possession without being due to him for any reason, civil or natural.

I. Hence, a payment is not indebitum, if due merely 12. 6. 8 : 12.

naturally; 6. 9: 12. 6.

11: 12. 6. 13: 12. 6. 14: 12. 6. 26. 12 : 12. 6. 28: 12.

6. 32. 2: 12. 6. 38. pr., 1 and 2 : 12. 6.

51 : 12. 6. 60. pr.: 12. 6. 64: 12. 6. 67. pr. and 4:

even though the payment may work no acquit­tance.

12. 6. 63.

As a civil debt is never indebitum, there is, in parti­cular, no condictio indebiti when a payment is made

(a) ex judicato :

(ß) ex compromisso :

(7) ex transactione :

unless the transactio is in any special instance in­valid or forbidden by law.

12. 6. 60. pr. : see also C.

4. 5. i and D. 17. i.

29. 5 :

12. 6. 26. 10:

12. 6. 23. pr. and i : 12.

6. 65. i :

12. 6. 23. pr. and 1 —4 : 12. 6. 65. i : 12. 6.

67· 3·

II. A payment is indebitum, and therefore the ap­propriate matter for a condictio indebiti,

(a) When not due at all naturally or civilly;

(a) Because paid for a cause which never in fact existed ;

(£) or which once existed, but ceased to exist before the payment;

12. 6. 2. i :

12. 6. 22.

pr. : 12. 6.

23. pr. : 12.

6. 26. 2 and

10: 12. 6.

34: 12. 6.

37: 12. 6.

38. 3 : 12.

6. 41: 12.

6. 58: 12.

6. 67. pr. :

12. 6. 25 : 12.

6. 54 : 12.

6. 59 :

(f) or which existed only naturally, and has been destroyed naturally;

(bgcolor=white>or the condictio ob turpcm vet injustam causarn.

2. The special condictio sine causa is used

to procure the cancelling of an agreement or docu­ment, 12. 7- 1. 3.

12. 6. ₃i: 12.

7. 1. pr. :

12. 7· 3 = or to recover payment made for a cause originally valid, but subsequently invalid. 12. 7. 1. 2 and 3 : 12. 7. 2: 12.

7. 4.

See also 12. 1. ₃r. 1: 12.

1. 3²· There is a doubt whether even this condiction can be employed when the relation between the parties is founded neither on contract nor quasi-contract. 12. 6. 33.