Liability of the defendant under the condictio
Normally, however, quite a different regime applied. The condictio was an actio stricti iuris and its formula did not, therefore, allow for any flexibility. The defendant, provided it could be established that he "appeared to have to give", was condemned in either the sum or the value of the object(s) that he had received.
If 10 000 had been transferred to him by mistake, he owed 10 000 sesterces; if he had received a specific object, he was liable for "quanti ea res est, tantam pecuniam". As far as money was concerned, this was where the matter ended. The possibility that he might have spent or lost it, or that for any other reason he might be unable to return the very same coins that he had received, did not matter: "Quod indebitum per errorem solvitur, aut ipsum aut tantundem repetitur. "[4587]° The recipient was in the same position as a borrower under a contract of mutuum[4588]—he did not have to return the same objects but objects of the same kind and to the same value. That he was no longer "enriched" and was therefore unable to pay even "tantundem" was of no consequence for the existence of his obligation either: after all, payment of 10 000 sesterces always remained objectively possible. The same considerations applied with regard to objects "quae pondere numero mensura consistunt";[4589] the liability of the defendant always remained unimpaired, for the very reason that the objects "in obligatione" were merely reckoned by weight, number or measure.[4590] Matters looked different, though, where the defendant had received a specific, individual object (species). If this object was destroyed, he was normally automatically released from his obligation: it had become (objectively) impossible to give the object he was bound to give and "impossibilium nulla est obligatio".394 Yet under certain circumstances the obligation was deemed to be perpetuated: the defendant either had to have been in mora or the impossibility to perform must have come about as a result of his "fault".345 No fictitious perpetuatio obligationis was necessary— because the obligation remained unaffected—if the enrichment debtor had sold the object that he had received. It was still (objectively) possible to render restitution, and thus he could be condemned, without further ado, to pay the value. Only if the object that the defendant had sold in good faith was subsequently destroyed, did the perpetuatio obligationis construction have, once again, to be resorted to. As a rule, however, it did not provide the plaintiff with a cause of action either, since the destruction was not normally attributable to the defendant/vendor's fault. The result was therefore that the latter was released from his enrichment obligation.4.
More on the topic Liability of the defendant under the condictio:
- Condictio pretii
- Condictio ob turpetn vel iniustam causam
- 2. Liability for others in Roman law (apart from noxal liability)
- Condictio sine causa
- 2. Condictio ex causa furtiva
- 2. The condictio ex causa furtiva
- Condictio indebiti
- Condictio indebiti
- The condictio ex causa furtiva
- Condictio ob turpem (vel iniustam) causam
- I. CONDICTIO
- Condictio causa data causa non secuta
- 1. Condictio causa data causa non secuta