Other types of obligations stricti iuris

We have so far only been looking at "certain rem dare" obligations and the actions applicable to them. Wherever a specific sum of money or the supply of unascertained goods was owed under an obligation stricti iuris (actio certae creditae pecuniae, "condictio triticaria"), no fictitious perpetuation was required to keep alive the debtor's obligation.

"Si paret A"¹ A^ra apud N^ra N"¹ mensam argenteam deposuisse eamque dolo malo ¹¹ A° A" redditam non esse, quanti ea res erit, tantam pecuniam...

Condemnation of the depositary depended on non-performance of his obligation to return the silver table. Why the depositor did not receive his table back was immaterial, save that it had to be owing to the depositary's dolus malus; thus, for instance, it did not matter whether the table had been destroyed (objective impossibility) or sold to a third party (subjective impossibility) or whether the depositary merely did not wish to hand it back. Neither did one have to employ the device of perpetuatio obligationis, nor was it in fact necessary to distinguish between different forms of breach of contract.³⁴ More particularly, objective impossibility did not have the same key significance that it had in the case of "certam rem dare" obligations. Problems could arise only in cases where the object of the deposit had deteriorated; for here, according to the formula, the depositary could not be condemned even when the deterioration had been attributable to his dolus malus; for the condition on which condemnation depended ("eamque... redditam non esse") had not materialized. The difficulty was resolved essentially in the same way as in the case of certam dare obligations:

"Si reddita quidem sir res [deposita], sed deterior reddita, non videbitur reddita, quae deterior facta redditur, nisi quid interest praestetur: proprie enim dicitur res non redditur, quae deterior redditur."³⁵

Something which is returned in a worse condition is deemed not to have been returned at all.

4.