The actio de in rem verso

"Alioquin si cum libero rem agente eius, cuius precibus meministi, contractum habuisti et eius personam elegisti, pervides contra dominum nullam te habuisse actionem, nisi vel in rem eius pecunia processit vel hunc contractum ratum habuit."

A has given a loan to B who, however, acted on behalf of C.

(b) Actio utilis de in rem verso

The writers of the ius commune usually referred to this remedy as an actio utilis de in rem verso.²⁸⁰ They saw it as yet another emanation of the equitable principle that nobody should be allowed to enrich himself at the expense of another. The traditional core example remained the one where C had been enriched as a result of a contract between A and B, and it was this contract which was seen by many as the basis of the action against the third party.²⁸¹ Others focused on the versio in rem ^{[4500] [4501] [4502] [4503] [4504] itself, on the gain received by C.282 For them the actio de in rem verso was a quasi-contractual action283 that could be likened to negotiorum gestio. This parallel284 was the more obvious, since both institutions followed the same rules. "In rem autem versum intellegitur, quod utiliter vel necessario impensum:"285 only necessary or useful expenses could be taken to have been converted to the third party's account.}

"totiens de in rem verso esse actionem, quibus casibus procurator mandati vel qui negotia gessit negotiorum gestorum haberet actionem quotiensque aliquid consump­sit servus, ut aut meliorem rem dominus habuerit aut non deteriorem".²*⁶

B, in concluding the contract with A, had to have acted as C's negotiorum gestor;²⁸⁷ and A could sue only C in those cases in which B could have availed himself of the actio negotiorum gestorum (contraria). So close was the relationship between actio utilis de in rem verso and actio negotiorum gestorum, in fact, that the borderlines were often blurred and an actio negotiorum gestorum was granted in place of an actio utilis de in rem verso.^2HH Others, however, maintained the distinction:

"in hoc tarnen ab ilia differt, quod actio negotiorum gestorum detur illi, qui ipse pecuniam in absentis negotia vertit...: actio autem de in rem verso datur illi, qui ipse pecuniam in alterius utilitatem non impendit, sed filio vel servo laut libero, we have to add], credidit, ut ille in rem patris vel domini verteret."²"⁹

A's remedy, in other words, was not an actio negotiorum gestorum because he had not managed C's affairs himself.

(c) C 4, 26, 7, 3 and third-party enrichment

In the course of time, however, C. 4, 26, 7, 3 was taken as authority for even further-reaching propositions. Some of the commentators had already established a link between this text and D. 12, 1, 32, the enigmatic lex Si et me et Titium, which also dealt with third-party enrichment. The common basis, claimed Baldus, was "equitas generalis que quocunque casu representata parit actionem generalem,

Cf. Lauterbach. Collegium theoretico-practicum. Lib. XIV. Tit. I. II. propter Utilitatem Praetor concedit actionem de m Rem verso"); Stryk, Usus modernus pandectarum. Lib. XV, Tit.

^2t0 Cf. already Ulp. D. 15, 3, 1 pr. ("... quasi cum ipsis potius contractum videatur"). But this phrase did not refer to a quasi-contractual obligation in the technical sense.

²¹⁴⁴ "... idem fere fundamentum habet [actio de in rem verso], quod actio negotiorum gestorum": Stryk, Usus tnodermis patidectarum, Lib. XV, Tit. Ill, § 1.

²⁵ Struve, Syntagma, Exerc. XX, Lib. XV, Tit. I, LXXIII.

²⁵³ Ulp. D. 15. 3. 3, 2.

^2H7 Or, according to D. 15, 3, 3, 2, as mandatarius; in this regard, the actio de in rem verso had, however, become redundant in the meantime: Kupisch, Versiotisklage, pp. 33 sqq.

^2KH Cf., in this light, the analysis by Van Zyj, Negotiorutn gestio, pp. 113 sqq.; cf. further the sources referred to by Schrage, loc. cit. (note 239), Kupisch, VersionskLige, p. 28 and Brandi, op. cit.. note 273, pp. 31 sqq.

²⁸⁹ Stryk, Usus modernus pandectamm. Lib. XV, Tit. Ill, § 4. scilicet certi condictionem. quod est notandum".²⁹⁰ This put the actio utilis de in rem verso into close proximity with the condictiones; and although most writers tried to keep the remedies apart, the obvious parallels between C. 4, 26, 7, 3 and D. 12, 1, 32 continued to confound the issues. Some three hundred years after Baldus, Ulrich Huber used D. 12, 1, 32 apropos his discussion of the actio de in rem verso to support his general proposition that

"ex aequitate contra Alium dandam in subsidium actionem, quia quod de meo ad te pervenit, hoc a te mihi reddi, bonum et aequum est".²⁹¹

Augustin Leyser, in turn, referred to the actio de in rem verso when he discussed D. 12, 1, 32. "It is impossible to describe the extent", he wrote,²⁹²

"to which the expositors have busied themselves with this text, the resources and the treasures of wisdom and equity they extract from it, the numbers of lawsuits and disputations they occasion in explaining and applying it....

The actio utilis de in rem verso was thus applicable, according to Leyser, whenever somebody had been enriched ex alieno contractu, irrespective of whether the contractual partner (B) or the plaintiff (A) had acted as negotiorum gestor for the defendant (C) or not.

(d) Versio in rem and two-party relationships

Of even greater significance was another development that occurred in the course of the 18th century.²⁹³ Hitherto the actio utilis de in rem verso had always been confined to what we have referred to as third-party enrichment. But the more the general attention was directed at the versio in rem itself (rather than the contractus aliorum) as the real basis of this remedy, the less emphasis was placed on the position of the middleman (B). Was it at all necessary to confine the actio de in rem verso to cases where a negotiorum gestor had converted the money (or whatever else he might have received from A) to C's account? Increasingly this question was answered in the negative. After all, it was quite imaginable that C might have been enriched, sine causa and at A's expense, through an act of A himself. In fact, the Roman sources themselves knew some such cases, and by making the actio de in rem verso applicable in two-party relationships, one was finally able ^{[4505] [4506] to assign a convenient systematic niche to them. The prime example concerned the liability of a pupillus mfantia maior under a contract that he had concluded sine auctoritate tutoris. Of course, he could not be held contractually responsible; yet, on the other hand, there was no reason to allow him to keep any enrichment arising as a result of such a transaction.}

"Contractus... cum pupillo initus tam diu erit nullus, usque duni creditor versioncm in rem, sive hunc exinde fact urn esse locupletiorem, probaverit";-"⁵ and the actio de in rem verso could thus be seen to lie "adversus eum quoque..., qui ex negotio se ipsum obligare nequit".^29fl This could be not only a pupillus infantia maior but also aliae personae "defectu quodam laborantes", "foeminae... in illis locis ubi curatore opus habe(n)t ad contrahendum", and, particularly interesting, "persona(e) morales jure minorennium gaudentes" (as, for example, "civitates, ecclesiae et collegia omnia, quae ad instar minorum alieno auxilio reguntur, et hinc suos curatores vel administratores habent" ).^2y7 Thus there was a strong tendency to broaden the scope of the actio de in rem verso to such an extent that it approached something like a general enrichment action: it could be used wherever someone had made a gain, directly or indirectly, at somebody else's expense.²⁹⁸ Not everybody was prepared, however, to follow Augustin Leyser, who even saw in it, under certain circumstances, a remedy in rem. Whenever something has been expended "in conservationem aut mehorationem rei alienae" in such a manner that the benefit was not to pertain to a specific person, "sed cum re ipsa in quosvis alios transeat, tune actio de in rem verso realis", he claimed and referred, by way of example, to the case of a brewer who saved his village from being marauded by a hostile army by handing over to the soldiers his entire supply of beer (to the value of over 2 000 Thaler). According to Leyser, the brewer may institute an actio de in rem verso against the owner of every house in that village,

²⁴⁴ Ulp. D. 26, 8. 1 pr.; Ulp. D. 26, 8, 5 pr. On these texts and the rescript of the emperor cf. von Liibtovv, Condictio, pp. 47 sqq,; Niederländer, op. at., note 253, pp. Ill sqq.; Luigi Labruna, Rescriptum Divi Pit (1962), passim; Van Zyl, Saakwaamemingsaksie. op. cit., note 248, pp. 12 sqq.; J.A.C. Thomas, "Naturalis obligatio pupilli", in: Sein und Werden im Recht. Festeabe für Ulrich von Lt'ibtow (1970"). pp 457 sqq.. 470 sqq.

² Stryk, Usus ttwdemus pandectanun. Lib. XII, Tit. I. § 17; and he adds: "hoc enim casu cum aequitati naturali consentaneum sit, neminem cum alterius damno fieri locupletiorem." More specifically on the situation where the other party manages the affairs of the minor (negotiorum gestio), cf. the analysis, stretching over all the periods of the ius commune, by­Van Zy], Saakwaamemingsaksie. op. cit., note 248, pp. 40 sqq., 51, 56 sq., 63 sq., 76 sq., 84 sq., 90 sq.

*^yfl Io. August Hellfeld. lurispmdentia forensis secundum pundeclaruin ordinem (3rd ed.. Jenac. n.d.), §918.

"⁴ Cf. Stryk, Usus nwdemus pandectamm. Lib. XII, Tit. I, §§ 23 sqq.

²⁹⁸ Cf also Going, p. 501.

irrespective of whether or not it has changed hands in the meantime."

(e) The actio de in rem verso in the natural-law codifications

This was the situation when, in the second half of the 18th century, Austria and Prussia set the wheels in motion to codify their private law. The actio de in rem verso in its extended version was firmly entrenched in the usus modernus pandectarum and appeared to conform fully with, if not even to derive from, the precepts of natural equity. Neither of the two legislators therefore hesitated to retain it.

"He, from whose property something has been converted to somebody else's benefit, is entitled either to claim the same back or to demand to be compensated for its value",

determined § 262 I 13 of the Prussian General Land Law,^{[4507] [4508] and the Austrian General Civil Code put it very similarly (§ 1041), but it added that the versio in rem alterius had to have come about otherwise than by way of "management of affairs".[4509]"1 In both codes these claims were systematically closely related to, but nevertheless quite separate from, negotiorum gestio. At the same time, they were very broadly phrased. Thus they presented themselves as suitable devices to remedy perceived shortcomings of the law of unjustified enrichment. In Austria, § 1041 ABGB, became, in the course of time, the sedes materiae for all enrichment claims arising not from transfer,[4510] and Prussian legal science used § 262 I 13 to smuggle the general condictio sine causa (that had, of late, become fashionable among contemporary pandectists) into the local code.[4511]}

But the true culmination of the astonishing career of the actio de in rem verso occurred in France.^{[4512] [4513] [4514] [4515] [4516] On the whole, French legal science had never been very favourably disposed towards this claim.303 In cases of third-party enrichment the actio negotiorum gestorum contraria utilis was usually resorted to, rather than the actio utilis de in rem verso,30'1 and thus there was no basis for applying the latter remedy to two-party relationships either. Pothier gave much scope to the institution of negotiorum gestio,307 but for the rest he concentrated on the condictio indebiti.308 His view, as usual, shaped the provisions of the code civil,[4517] and, as a result, both the condictio sine causa and the general actio de in rem verso remained outside its purview. A German professor writing a textbook on French private law[4518] did, however, manage to find some scattered provisions[4519] which appeared to be based on the concept of a versio in rem and which could be reduced to the common denominator of Pomponius' unjust enrichment principle. His views commended themselves to two influential French authors[4520] and, through them, ultimately to the Court of Cassation, which, in the famous arret Boudier of 1892 recognized the actio de in rem verso as a general enrichment action "derivant du principe d'equite qui defend de s'enrichir au detriment d'autrui".[4521] It soon became apparent that this formulation was too wide and that not every enrichment which has accrued at someone else's expense may be recoverable. The enrich­ment, it came to be accepted, must have occurred "sans cause Ugitime", or, in the terminology of the ius commune, sine causa.[4522] The modern French version of the actio de in rem verso has thus become synonymous with enrichissement sans cause —a development, inciden­tally, which has heralded the destruction of the very basis from which it had once set out on its triumphal march through European legal history. For if an action lies only where the defendant has been enriched sine causa, it cannot normally apply in cases of third-party enrichment such as the one discussed in C. 4, 26, 7, 3; the middleman's negotiorum gestio, after all, provides a cause legitime for what the third party has acquired.[4523]}

4.