Miscellaneous cases

(a) Pomponius' enrichment principle

The carving out of specific claims, each with their own requirements, is clearly conducive to legal certainty; at the same time, however, there is always a good chance of new cases cropping up which also deserve to be remedied but which do not fit into one of the existing niches.

The question then arises whether, and if so how, to adapt the system in order to accommodate such novel situations. This question naturally presented itself to the Roman lawyers as far as unjustified enrichment claims were concerned; and what they obviously had to do was to try to find a common denominator for all the existing condictiones. What was the general principle that had justified the granting of specific enrichment actions and that could now be used to expand, but at the same time suitably contain, the range of claims?

Originally, of course, the condictio had been the fertile (procedural) mother of the (substantive) claims.'^iy But, for one thing, it had become barren with the demise of the formulary procedure; and, for another the "dare oportere" had, of course, been much too abstract to play any useful role in giving shape and substance to the individual unjustified enrichment claims. Another similarly resourceful mother of legal rules and institutions was natural equity. That nobody should enrich himself at the expense of another, was an important precept based on it: "Nam hoc natura aequum est neminem cum altenus detrimento fieri locupletiorem", in Pomponius' well-known words.¹²⁰ Justinian regarded this statement as so important that he included it, in a slightly modified version, among the diversae regulae iuris antiqui with which he rounded off his compilation.¹²¹ But, of course, it had never been a legal rule of immediate applicability. The Roman economy could hardly have flourished as it did if every enrichment at the expense of another had been frowned upon: all businessmen, after all, tend to make their profits at the expense of their competitors.

The general equitable principle needed to be transformed into more specific legal rules. This is in fact what happened after the time of the Republic, and in a whole variety of fields do we find Pomponius' principle at work behind the scenes.¹²²

One of these fields was the condictio, as far as it was used as an enrichment action. Thus we see, for instance, Papinian claiming that "fhjaec condictio ex bono et aequo introducta, quod alterius apud alterum sine causa deprehenditur, revocare consuevit".¹²³ Which type of enrichment condictio he had in mind when he referred to "haec

"⁹John P. Dawson, Unjust Enrichment (1951), p. 42 elegantly describes the condictio as "the Roman general assumpsit" (on which, see supra, pp. 777 sqq. and infra, pp. 892 sqq.).

D. 12, 6, 14. On the origin and background of this principle (stoic moral philosophy) and its reception into the legal system, see Christian Wollschlager, "Das stoische Bereicherungsverbot in der romischen Rcchrswissenschaft". in: Rimtisches Recht in der europäischen Tradition, Sytnposion für Franz Wieacker (1985'1. pp. 41 sqq.

D. 50, 17, 206: "lure naturae aequum est neminem cum alterius detrimento et iniuria fieri locupletiorem."

"" Forali details, see Wollschlager, Symposion Wieacker. pp. 61 sqq.

¹²³1). 12, 6, 66. condictio", we do not know; it may have been the condictio indebiti (after all, the fragment was placed by Justinian in the title 12, 6) or the condictio ex causa furtiva. What is significant about the text is the historical link, of which it bears witness, between the precepts of fairness and equity and the use of the condictio as a claim to recover whatever of one's property happened to be, without good cause, in the hands of another. The condictio causa data causa non secuta is likewise said to be grounded on the idea of what is just and fair;^{^[4388]} and in a variety of other places naturalis aequitas,^{^[4389]} natura^{^[4390]} and ius gentium^{^[4391]} are referred to in the context of enrichment condictiones.

All these texts have been subjected to radical criticism: how could the classical Roman lawyers, one argued, be taken to have conceived of such an intimate connection between the various emanations of the condictio (an actio stricti iuris!) on the one hand and natural law and equity on the other! We must be dealing here with one of those typically Byzantine attempts to replace the clear rules of classical Roman law by a somewhat amorphous equity jurisprudence.^{^[4392]} Yet it is not at all difficult to reconcile the one with the other. The condictio was, of course, an actio stricti iuris and once the praetor was prepared to grant the action, the judge had no discretion. Under which circumstances the plaintiff's duty of "dare oportere" could, however, be accepted, was a matter of interpretation, and in this regard the aequitas naturalis could indeed be of great significance. Thus it helped to shape the various enrichment condictiones; but at the same time it always remained available in a residuary function and never completely lost its creative potential. Occasionally, individual decisions continued to be based directly on what appeared to be right and fair. Celsus D. 12, 1, 32^{^[4393]} is probably the most prominent case in point. We are dealing here with the situation where A orders his debtor B to promise a loan to C.¹³⁽⁾ C, however, believes B to be the debtor of Titius, not of A. As a result of C's error in persona, a contract between A and C has not come into existence.¹³¹ Nevertheless, C is under an obligation to return to A what he has received from him. Since A is deemed to have given the money that he was owed by B, to C,¹³² a mutuum would have come into existence between A and C but for C's mistake about the identity of his contractual partner. The situation is thus that C is deemed to have received the money from A: but as the intended loan transaction did not come into being, he appears to be enriched, sine causa, at the expense of A.

A must therefore clearly be granted a claim; since, however, the transfer constituted neither an indebitum solutum nor a datio ob rem, neither condictio indebiti nor condictio causa data causa non secuta is applicable to effectuate the retransfer. Celsus, under these circumstances, merely refers to "[quod] bonum et aequum est" as the basis for A's claim.

(b) Retinere sine causa

Bonum et aequum, naturalis aequitas, ius gentium: these were, of course, rather unspecific guidelines to determine unjustified enrichment problems. It is hardly surprising, therefore, that the Roman lawyers attempted to identify criteria on a somewhat lower level of abstraction, but still transcending the specific requirements of the individual condictiones. Some of them, for example, experimented with the concept of negotium contractum; a condictio, they claimed, could be instituted only if the datio had been based on a cooperation between giver and recipient, supported by the intention of both of them to enter into a transaction. But although this criterion was occasionally used in order to exclude restitution,¹³³ it could hardly hope to gain widespread support as a common denominator embracing all varieties of (enrichment) condictiones:¹³⁴ the condictio ex causa furtiva, for example, obviously did not require a negotium contractum. Much more promising was the notion advanced by, among others, Papinian, when he reflected on the origins of "[h]aec condictio":¹³⁵ the notion that something is found "apud alterum sine causa". Sine causa did not, of course, signify a lack of the causal basis required for the transfer of ownership. If, for example, a sedan chair was handed over in fulfilment of an invalid stipulatory promise, ownership passed to the recipient, for

^a Cf. supra, p. 592.

^E "Qui debitorem suum delegat, pecuniam dare intellegitur, quanta ei debetur": lui. D. 46. 1. 18.

™ lui. D. 12. 6. 33: "Si in area tua aedificassem et tu accies possideres, condictio locum non habebit, quia nullum negotium inter nos contraheretur: nam is. qui non debitam pecuniam solvent, hoc ipso aliquid negotii gerit: cum autem aedificium in area sua ab alio positum dominus occupat, nullum negotium contrahit." On this text. cf. Schwarz. Condictio, pp. 192 sq.

“ But cf. Kaser. RPr 1. pp. 594 sq.

⁵ D. 12. 6. 66: cf. supra, p. 852 (note 123").

the traditio found sufficient "causal" support in the causa solvendi. Yet, since the underlying obligatory act was invalid, the recipient had acquired ownership "sine causa": his enrichment was not justified in the sense that he did not deserve to retain the object of the transfer. It was this absence of a causa retinendi, resulting either from the failure of the purpose of the performance (condictio indebiti, condictio causa data causa non secuta) or from an unjustified interference (condictio ex causa furtiva) that provided the key to the non-contractual condictiones.^[4394]

But if the "sine causa" requirement lay at the root of all the recognized enrichment condictiones, it could also be used as a convenient touchstone of liability when it came to the discussion of novel types of situations. Thus we find, indeed, a variety of texts expanding the existing system of condictiones on the basis merely that the defendant appeared to have acquired something sine causa. Take, for example, the case discussed by Ulpian and reported in D. 12, 7, 2.^[4395] The owner of a laundry receives clothes from a client. When he loses the clothes, his client brings the actio locati and obtains reimbursement of the value of the clothes. Later the client finds the clothes. It is obvious that the launderer should be allowed to reclaim what he had to pay under the actio locati. Yet that payment, at the time when it was made, was not indebitum solutum.

The launderer owed the money and his client did not acquire it sine causa. It was only subsequently that his causa retinendi fell away: "etenim vestimentis inventis quasi sine causa datum videtur." Hence the (rather tentative) conclusion: "quasi sine causa datum... putamus condici posse". Cases of this kind were even allotted a special terminological compartment of their own: they came to be referred to as condictiones ob causam fmitam. One of the first references to the new species of condictio^[4396] ^{^[4397] is contained in a text on sale.^13y A purchaser of wine had given an arrha; later, however, the parties agreed to rescind their contract. As a result, the arrha obviously had to be given back, but, again, the condictio indebiti was of no avail. Julian therefore granted the condictio sine causa: "certe etiam condici poterit, quia iam sine causa apud venditorem est anulus." Ulpian concurred and specified "quasi ob causam datus sit [sc: anulusi et causa finita sit".^[4398] Another important example of a condictio sine causa was the so- called condictio liberationis. If someone had undertaken, by way of an abstract stipulation, to pay a certain sum of money or to deliver a specific object, the promise was valid irrespective of whether the underlying reason (causa) for which it had been given was flawed or not.^[4399] ^{^[4400] If it was, the stipulator had received the promise sine causa. Despite the fact that this was neither a case of indebitum solutum nor of causa data causa non secuta, he had to render restitution. A specific procedural avenue was even made available for this purpose, because what the promisor asked for was neither certa res nor certa pecunia but "ut promissione liberetur", or simply "liberatio" (i.e. an incertum). Unless, therefore, the stipulator released him by means of acceptilatio, the promisor could institute a condictio incerti (sine causa) against him®}
(d) Condictio sine causa
Justinian accommodated these two special types of situations in a separate Digest title: D. 12, 7, De condictione sine causa. "Est et haec species condictionis, si quis sine causa promiserit.. it starts^[4401] and picks up the same theme (the condictio liberationis) at a later stage.^[4402] The condictio ob causam finitam is referred to in the second fragment.^[4403] ^{^[4404] Another case (Pap. D. 12, 7, 5)¹⁴⁽¹ is possibly included because of the uncertainty whether to subsume it under the condictio ob rem or ob turpem vel iniustam causam. All this creates the impression that D. 12, 7 was meant to serve as a residuary category, comprising whatever did not fit in neatly with any of the other condictiones. When they referred to it in this particular function, the writers of the ius commune usually spoke of the condictio sine causa specialis.^[4405] But there is another side to D. 12, 7, too. The introductory fragment already assures the reader that "this kind of condictio" (the condictio sine causa, one is bound to infer) also lies "si solvent quis indebitum".^[4406] "IS]i ob causam promisit, causa tamen secuta non est" is then given as a further example of where it has to be said "condictionem locum habere".^[4407] ^{^[4408] A condictio, the condictio, the condictio sine causa? If these (and some other) texts^[4409]' have to be taken to relate to the condictio sine causa, we must be dealing here with a remedy of very wide applicability; a remedy, in fact, that could be brought whenever any of the other, more specialized, condictiones could be instituted too. As such, it not only covered a hotchpotch of special cases but also swallowed up, as a kind of condictio (sine causa) generalis,¹⁵¹ all the standard situations of enrichment liability qua condictio. The whole of the title D. 12, 7 oscillates uneasily between the two poles of a condictio sine causa specialis and generalis. It was, however, only in its former function that the condictio sine causa trod new ground. As condictio generalis it did not extend the range of enrichment liability; its main significance, in this respect, was to pinpoint the common basis of all enrichment condictiones.}}
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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

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