"Si paret... dare oportere"

It must appear somewhat ironic that the origin of our law of unjustified enrichment (which is often regarded as a rather irregular branch of the law, providing for a more or less discretionary remedy in cases of inequitable hardship)^[4288] should lie in the actiones stricti iuris of Roman law.

One can even trace the name "condictio" back to the time when the formulary procedure was not yet known, but when the parties to the proceedings before the magistrate (in hire) had to make their assertions in prescribed and precisely set forms of words. A trial could be founded upon five different legis actiones, one of which was the so- called legis actio per condictionem.^[4289] Its name is derived from "condicere", which means as much as "to give notice" ("Condicere autem denuntiare est prisca lingua").^[4290] If, at the first appearance by the parties, the defendant denied the plaintiffs assertions that he owed him a sum of money, or a specific thing, the plaintiff "gave him notice" to appear again before the magistrate after 30 days.^[4291] This period gave the parties an opportunity to settle their dispute; only if they failed do so was a judge appointed so that the proceedings could begin in earnest apud iudicem.

The most important characteristic, for our present purposes, of the legis actio per condictionem^[4292] was its abstract nature. The substantive basis of the claim, its causa debendi, was never mentioned; what was referred to was the mere fact that a particular sum of money or a specific object was owing (the "dare oportere").^[4293] When the formulary process with written formulae slowly superseded the legis actiones, it followed their model in many respects; after all, the Roman lawyers were always loath to disrupt the even flow of legal development more than was absolutely necessary.^[4294] Thus, in particular, the intentio of the more modern successor of the legis actio per condictionem was also framed abstractly: "Si paret N^m N^m A° A° tritici Africi optimi modios centum dare oportere." ^[4295]

Although the giving of notice had by now disappeared,^[4296] the new remedy retained the name "condictio": condictio certae pecuniae or condictio certae rei, as the case might be.

It was the prototype of an actio stricti iuris in classical Roman law: the judge merely had the choice to condemn in "decern milia" ("quanti ea res est tanta pecunia"), or to absolve. But since the standard formula did not refer to the causa debendi, the condictio turned out to be applicable to a broad variety of situations. Thus, at a comparatively early stage,^[4297] it became the remedy by means of which promises in the form of stipulations for a certum were enforceable;^[4298] for if B has promised A to pay ten thousand sesterces, it is indeed appropriate to say that B "ought to give" ten thousand sesterces to A. Also attributable to the "veteres" (i.e. the Republican jurists)^[4299] is its application, in a delictual context, as condictio ex causa furtiva;^[4300] for again, if a certain object had been stolen, it was perfectly apposite for its owner to allege that the thief must give it back to him. Somewhat later (though still before the year 76 b.c.)^[4301] it was extended to the new informal loantransaction mutuum^[4302] and, closely related to it, to obligationes litteris.^[4303] ^{^[4304] ^[4305] ^[4306] ^[4307] And ultimately, certain instances of unjustified retention were regarded as sufficiently similar to these types of situations as also to be remedied by means of the condictio. This heralded the birth of the condictio as an unjustified enrichment action. Gaius emphasized its structural similarity with mutuum: "Is quoque qui non debitum accepit ab eo qui per errorem solvit, re obligatur", he wrote²² and proceeded to argue that the condictio with the pleading "si paret eum dare oportere" lay against such a person, precisely as if he had received the payment by way of a loan. This argument could, indeed, not be faulted at a time when obligationes re were taken to be based exclusively on rei interventio (or datio). By the time of Gaius, however, the consensual leg of mutuum was already far enough developed²³ that the crucial distinction between condictiones based on mutuum and those based on unjustified retention had become obvious. To quote Gaius once again: "[S]cd haec species obligations [i.e., the one arising from indebitum solutum] non videtur ex contraetu consistere, quia is qui solvendi animo dat magis distrahere vult negotium quam contrahere."²⁴
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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

"Si paret... dare oportere"

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