Corpus iurisprudentiae Romanae

Repertorium zu den Quellen des römischen Rechts

Digesta Iustiniani Augusti

Recognovit Mommsen (1870) et retractavit Krüger (1928)
Convertit in Anglica lingua Scott (1932)
Dig. XII4,
De condictione causa data causa non secuta
Liber duodecimus
IV.

De condictione causa data causa non secuta

(Concerning a Suit for the Recovery of Property Given for a Consideration Which Does Not Take Place.)

1Ul­pia­nus li­bro vi­cen­si­mo sex­to ad edic­tum. Si ob rem non in­ho­nes­tam da­ta sit pe­cu­nia, ut fi­lius em­an­ci­pa­re­tur vel ser­vus ma­nu­mit­te­re­tur vel a li­te dis­ce­da­tur, cau­sa se­cu­ta re­pe­ti­tio ces­sat. 1Si pa­ren­di con­di­cio­ni cau­sa ti­bi de­de­ro de­cem, mox re­pu­dia­ve­ro he­redi­ta­tem vel le­ga­tum, pos­sum con­di­ce­re.

1Ulpianus, On the Edict, Book XXVI. Where money is paid on account of some act which is not dishonorable, as that a son shall be emancipated, or a slave manumitted, or a suit abandoned; then, if the act is performed, an action for the recovery of the money will not lie. 1If I pay you ten aurei for fulfilling a condition, and I afterwards reject an estate or a legacy, I can bring suit to recover the money.

2Her­mo­ge­nia­nus li­bro se­cun­do iu­ris epi­to­ma­rum. Sed et si fal­sum tes­ta­men­tum si­ne sce­le­re eius qui de­dit vel in­of­fi­cio­sum pro­nun­tie­tur, vel­uti cau­sa non se­cu­ta de­cem re­pe­ten­tur.

2Hermogenianus, Epitomes of Law, Book II. Where, however, the will is pronounced to be forged or inofficious, without criminality on the part of him who paid the money, the said ten aurei can be recovered by an action on the ground of failure of consideration.

3Ul­pia­nus li­bro vi­cen­si­mo sex­to ad edic­tum. De­di ti­bi pe­cu­niam, ne ad iu­di­cem ire­tur: qua­si de­ci­di. an pos­sim con­di­ce­re, si mi­hi non ca­vea­tur ad iu­di­cem non iri? et est ve­rum mul­tum in­ter­es­se, utrum ob hoc so­lum de­di, ne ea­tur, an ut et mi­hi re­pro­mit­ta­tur non iri: si ob hoc, ut et re­pro­mit­ta­tur, con­di­ci pot­erit, si non re­pro­mit­ta­tur: si ut ne ea­tur, con­dic­tio ces­sat quam­diu non itur. 1Idem erit et si ti­bi de­de­ro, ne Sti­chum ma­nu­mit­tas: nam se­cun­dum di­stinc­tio­nem su­pra scrip­tam aut ad­mit­ten­da erit re­pe­ti­tio aut in­hi­ben­da. 2Sed si ti­bi de­de­ro, ut Sti­chum ma­nu­mit­tas: si non fa­cis, pos­sum con­di­ce­re, aut si me pae­ni­teat, con­di­ce­re pos­sum. 3Quid si ita de­di, ut in­tra cer­tum tem­pus ma­nu­mit­tas? si non­dum tem­pus prae­ter­iit, in­hi­ben­da erit re­pe­ti­tio, ni­si pae­ni­teat: quod si prae­ter­iit, con­di­ci pot­erit. sed si Sti­chus de­ces­se­rit, an re­pe­ti quod da­tum est pos­sit? Pro­cu­lus ait, si post id tem­po­ris de­ces­se­rit, quo ma­nu­mit­ti po­tuit, re­pe­ti­tio­nem es­se, si mi­nus, ces­sa­re. 4Quin im­mo et si ni­hil ti­bi de­di, ut ma­nu­mit­te­res, plac­ue­rat ta­men, ut da­rem, ul­tro ti­bi com­pe­te­re ac­tio­nem, quae ex hoc con­trac­tu nas­ci­tur, id est con­dic­tio­nem de­func­to quo­que eo. 5Si li­ber ho­mo, qui bo­na fi­de ser­vie­bat, mi­hi pe­cu­niam de­de­rit, ut eum ma­nu­mit­tam, et fe­ce­ro: post­ea li­ber pro­ba­tus an mi­hi con­di­ce­re pos­sit, quae­ri­tur. et Iu­lia­nus li­bro un­de­ci­mo di­ges­to­rum scri­bit com­pe­te­re ma­nu­mis­so re­pe­ti­tio­nem. Ne­ra­tius et­iam li­bro mem­bra­na­rum re­fert Pa­ri­dem pan­to­mi­mum a Do­mi­tia Ne­ro­nis fi­lia de­cem, quae ei pro li­ber­ta­te de­de­rat, re­pe­tis­se per iu­di­cem nec fuis­se quae­si­tum, an Do­mi­tia sciens li­be­rum ac­ce­pis­set. 6Si quis qua­si sta­tu­li­ber mi­hi de­cem de­de­rit, cum ius­sus non es­set, con­di­ce­re eum de­cem Cel­sus scri­bit. 7Sed si ser­vus, qui tes­ta­men­to he­redi ius­sus erat de­cem da­re et li­ber es­se, co­di­cil­lis pu­re li­ber­ta­tem ac­ce­pit et id igno­rans de­de­rit he­redi de­cem, an re­pe­te­re pos­sit? et re­fert pa­trem suum Cel­sum ex­is­ti­mas­se re­pe­te­re eum non pos­se: sed ip­se Cel­sus na­tu­ra­li ae­qui­ta­te mo­tus pu­tat re­pe­ti pos­se. quae sen­ten­tia ve­rior est, quam­quam con­stet, ut et ip­se ait, eum qui de­dit ea spe, quod se ab eo qui ac­ce­pe­rit re­mu­ne­ra­ri ex­is­ti­ma­ret vel ami­cio­rem si­bi es­se eum fu­tu­rum, re­pe­te­re non pos­se opi­nio­ne fal­sa de­cep­tum. 8Sup­ti­lius quo­que il­lud trac­tat, an il­le, qui se sta­tu­li­be­rum pu­ta­ve­rit, nec fe­ce­rit num­mos ac­ci­pien­tis, quon­iam he­redi de­dit qua­si ip­sius he­redis num­mos da­tu­rus, non qua­si suos, qui uti­que ip­sius fue­runt, ad­quisi­ti sci­li­cet post li­ber­ta­tem ei ex tes­ta­men­to com­pe­ten­tem. et pu­to, si hoc ani­mo de­dit, non fie­ri ip­sius: nam et cum ti­bi num­mos meos qua­si tuos do, non fa­cio tuos. quid er­go, si hic non he­redi, sed alii de­dit, cui pu­ta­bat se ius­sum? si qui­dem pe­cu­lia­res de­dit, nec fe­cit ac­ci­pien­tis: si au­tem alius pro eo de­dit aut ip­se de­dit iam li­ber fac­tus, fient ac­ci­pien­tis. 9Quam­quam per­mis­sum sit sta­tu­li­be­ro et­iam de pe­cu­lio da­re im­plen­dae con­di­cio­nis cau­sa, si ta­men vult he­res num­mos sal­vos fa­ce­re, pot­est eum ve­ta­re da­re: sic enim fiet, ut et sta­tu­li­ber per­ve­niat ad li­ber­ta­tem qua­si im­ple­ta con­di­cio­ne cui pa­re­re pro­hi­bi­tus est, et num­mi non per­ibunt. sed is, quem tes­ta­tor ac­ci­pe­re vo­luit, ad­ver­sus he­redem in fac­tum ac­tio­ne age­re pot­est, ut tes­ta­to­ri pa­rea­tur.

3Ulpianus, On the Edict, Book XXVI. I paid you a certain sum of money to avoid your bringing me into court; and, hence I, as it were, disposed of the matter. Can I bring suit for recovery, if security is not furnished me that judicial proceedings will not be instituted? It is true that it makes a great deal of difference whether I paid the money for no other purpose than to avoid being brought into court, or that I should be promised that this would not be done; but if this was the consideration, namely, that I should be promised, I can bring suit to recover the money if the promise was not given; but if the understanding was merely that judicial proceedings should not be undertaken, no action for recovery will lie as long as this is not done. 1The same rule will apply if I pay you a sum of money on the condition that you do not manumit Stichus; for, in accordance with the distinction above stated, an action for recovery can either be granted or refused. 2But if I pay you the sum of money on the condition that you will manumit Stichus, and you do not do so, I can bring an action for its recovery; or, if I change my mind, I can still bring it. 3Where, however, I paid you the money on condition that you would manumit him by a certain time, what then? If the time has not yet elapsed, a suit to recover the money will be refused, unless I have changed my mind; but if it has elapsed, suit can be brought. But if Stichus is dead, can the money which was paid be recovered? Proculus says that if he died after the time had arrived when he could have been manumitted, an action for recovery will lie, otherwise not. 4And, indeed, if I did not pay you anything to induce you to manumit the slave, but it was agreed that I should pay you, you are at liberty to bring the action which arises from such a contract, that is, a personal action for recovery, even though the slave be dead. 5Where a freeman who was serving me as a slave in good faith pays me money on the condition that I will manumit him, and I do so, and he is afterwards proved to be free; the question arises, can he bring an action against me to recover the money? Julianus says in the Eleventh Book of the Digest that the manumitted party has a right of action for its recovery. Neratius also, in the Book of Parchments, states that a certain Paris, a dancer, who had paid Domitia, the daughter of Nero, ten aurei to obtain his freedom, brought an action against her to recover it, and the inquiry was not made as to whether Domitia received it knowing at the time that he was free. 6If anyone pays me ten aurei, with the understanding that he is a slave who expects to be free on a certain condition, when he was not ordered to do this; Celsus holds that he can bring suit to recover the ten aurei. 7Where a slave who was directed under a will to pay the heir ten aurei and become free, received his freedom absolutely under a codicil, but, being ignorant of the fact, paid ten aurei to the heir; can he bring an action for their recovery? He states that Celsus, his father, held that he could not recover them; but Celsus himself, being influenced by a feeling of natural justice, thinks that suit can be brought for their recovery. This opinion is the more correct one, although it is established (as he himself states) that a party who paid money with the expectation that he would be remunerated by the person who received it, or that the latter would be more friendly to him in the future, cannot recover it; because he was deceived by a false opinion. 8He also discusses here a nicer point, namely, as to whether a slave who thought that he would be conditionally free, did not transfer the property in the money which he paid to the party receiving it; since he paid it to the heir under the impression that it belonged to the heir instead of to himself, although the money was his, as he received it after his freedom had been granted him under the will. I am of the opinion that, if he paid it under this impression, it did not become the property of the heir; for even where I pay you my money as if it was your own, I do not make it yours. What would be the case, then, if the party above mentioned did not pay it to the heir, but to someone else to whom he thought he had been ordered to pay it? If, indeed, he paid the money out of his peculium, he would not make it the property of the party who received it; but if another paid it for him, or he himself paid it after he became free, it would become the property of the person who received it. 9Although a slave freed under a condition is permitted to pay money out of his peculium, in compliance with some condition, still if the heir wishes to retain it, he can forbid him to pay it; for then the result will be that the slave will obtain his freedom just as if he had fulfilled the condition which he was forbidden to comply with, and the money will not be lost. But the party whom the testator wished to receive the money can bring an action in factum against the heir to compel him to obey the order of the testator.

4Idem li­bro tri­gen­si­mo no­no ad edic­tum. Si quis ac­cep­to tu­le­rit de­bi­to­ri suo, cum con­ve­ni­ret, ut ex­pro­mis­so­rem da­ret, nec il­le det, pot­est di­ci con­di­ci pos­se ei, qui ac­cep­to sit li­be­ra­tus.

4The Same, On the Edict, Book XXXIX. Where a creditor discharges his debtor after he had agreed to provide someone who would promise to make payment in his stead, and he does not do so; it may be held that the party who was discharged is liable to a suit for the recovery of the money.

5Idem li­bro se­cun­do dis­pu­ta­tio­num. Si pe­cu­niam id­eo ac­ce­pe­ris, ut Capuam eas, de­in­de pa­ra­to ti­bi ad pro­fi­cis­cen­dum con­di­cio tem­po­ris vel va­le­tu­di­nis im­pe­d­imen­to fue­rit, quo mi­nus pro­fi­cis­ce­re­ris, an con­di­ci pos­sit, vi­den­dum: et cum per te non ste­te­rit, pot­est di­ci re­pe­ti­tio­nem ces­sa­re: sed cum li­ceat pae­ni­te­re ei qui de­dit, pro­cul du­bio re­pe­te­tur id quod da­tum est, ni­si for­te tua in­ter­sit non ac­ce­pis­se te ob hanc cau­sam pe­cu­niam. nam si ita se res ha­beat, ut, li­cet non­dum pro­fec­tus sis, ita ta­men rem com­po­sue­ris, ut ne­ces­se ha­beas pro­fi­cis­ci, vel sump­tus, qui ne­ces­sa­rii fue­runt ad pro­fec­tio­nem, iam fe­cis­ti, ut ma­ni­fes­tum sit te plus for­te quam ac­ce­pis­ti ero­gas­se, con­dic­tio ces­sa­bit: sed si mi­nus ero­ga­tum sit, con­dic­tio lo­cum ha­be­bit, ita ta­men, ut in­dem­ni­tas ti­bi prae­ste­tur eius quod ex­pen­dis­ti. 1Si ser­vum quis tra­di­de­rit ali­cui ita, ut ab eo in­tra cer­tum tem­pus ma­nu­mit­te­re­tur, si pae­ni­tue­rit eum qui tra­di­de­rit et su­per hoc eum cer­tio­ra­ve­rit et fue­rit ma­nu­mis­sus post pae­ni­ten­tiam, at­ta­men ac­tio prop­ter pae­ni­ten­tiam com­pe­tit ei qui de­dit. pla­ne si non ma­nu­mi­se­rit, con­sti­tu­tio suc­ce­dit fa­cit­que eum li­be­rum, si non­dum pae­ni­tue­rat eum qui in hoc de­dit. 2Item si quis de­de­rit Ti­tio de­cem, ut ser­vum emat et ma­nu­mit­tat, de­in­de pae­ni­teat, si qui­dem non­dum emp­tus est, pae­ni­ten­tia da­bit con­dic­tio­nem, si hoc ei ma­ni­fes­tum fe­ce­rit, ne si post­ea emat, dam­no ad­fi­cie­tur: si ve­ro iam sit emp­tus, pae­ni­ten­tia non fa­cit in­iu­riam ei qui red­emit, sed pro de­cem quae ac­ce­pit ip­sum ser­vum quem emit re­sti­tuet aut, si an­te de­ces­sis­se pro­po­na­tur, ni­hil prae­sta­bit, si mo­do per eum fac­tum non est. quod si fu­git nec cul­pa eius con­ti­git qui red­emit, ni­hil prae­sta­bit: pla­ne re­pro­mit­te­re eum opor­tet, si in po­tes­ta­tem suam per­ve­ne­rit, re­sti­tu­tum iri. 3Sed si ac­ce­pit pe­cu­niam ut ser­vum ma­nu­mit­tat is­que fu­ge­rit prius quam ma­nu­mit­ta­tur, vi­den­dum, an con­di­ci pos­sit quod ac­ce­pit. et si qui­dem dis­trac­tu­rus erat hunc ser­vum et prop­ter hoc non dis­tra­xit, quod ac­ce­pe­rat ut ma­nu­mit­tat non opor­tet ei con­di­ci: pla­ne ca­ve­bit, ut, si in po­tes­ta­tem suam per­ve­ne­rit ser­vus, re­sti­tuat id quod ac­ce­pit eo mi­nus, quo vi­lior ser­vus fac­tus est prop­ter fu­gam. pla­ne si ad­huc eum ma­nu­mit­ti ve­lit is qui de­dit, il­le ve­ro ma­nu­mit­te­re no­lit prop­ter fu­gam of­fen­sus, to­tum quod ac­ce­pit re­sti­tue­re eum opor­tet. sed si eli­gat is, qui de­cem de­dit, ip­sum ser­vum con­se­qui, ne­ces­se est aut ip­sum ei da­ri aut quod de­dit re­sti­tui. quod si dis­trac­tu­rus non erat eum, opor­tet id quod ac­ce­pit re­sti­tui, ni­si for­te di­li­gen­tius eum ha­bi­tu­rus es­set, si non ac­ce­pis­set ut ma­nu­mit­te­ret: tunc enim non est ae­quum eum et ser­vo et to­to pre­tio ca­re­re. 4Sed ubi ac­ce­pit, ut ma­nu­mit­te­ret, de­in­de ser­vus de­ces­sit, si qui­dem mo­ram fe­cit ma­nu­mis­sio­ni, con­se­quens est, ut di­ca­mus re­fun­de­re eum quod ac­ce­pit: quod si mo­ram non fe­cit, sed cum pro­fec­tus es­set ad prae­si­dem vel apud quem ma­nu­mit­te­re pos­set, ser­vus in iti­ne­re de­ces­se­rit, ve­rius est, si qui­dem dis­trac­tu­rus erat vel quo ip­se usu­rus, opor­te­re di­ci ni­hil eum re­fun­de­re de­be­re. enim­ve­ro si ni­hil eo­rum fac­tu­rus, ip­si ad­huc ser­vum ob­is­se: de­ce­de­ret enim et si non ac­ce­pis­set ut ma­nu­mit­te­ret: ni­si for­te pro­fec­tio ma­nu­mis­sio­nis gra­tia mor­ti cau­sam prae­buit, ut vel a la­tro­ni­bus sit in­ter­fec­tus, vel rui­na in sta­bu­lo op­pres­sus, vel ve­hi­cu­lo ob­tri­tus, vel alio quo mo­do, quo non per­iret, ni­si ma­nu­mis­sio­nis cau­sa pro­fi­cis­ce­re­tur.

5The Same, Disputations, Book II. Where you receive money on the condition that you will go to Capua, and then at the time when you are prepared to start on your journey, the state of the weather, or your health prevents you from doing so; let us consider whether an action to recover the money can be brought on the ground of your failure to make the journey? Since you were not to blame for not going, it may be stated that an action to recover the money will not lie; but, as the party who paid it has a right to change his mind, there is no doubt that what has been paid can be recovered by an action, unless it would have been to your advantage not to have received the money for that purpose; or if the condition of things is such that, although you have not yet started you have, nevertheless, arranged your affairs so that you are compelled to go, or that you have already incurred the necessary expenses for the journey, so that it is evident, for instance, that you have expended more than you have received, an action for recovery will not lie; but if you have spent less, the action can be brought, provided, however, that you will be indemnified for what you have expended. 1Where one party delivers a slave to another with the understanding that he shall, within a certain time, be manumitted by him, and he who delivered the slave changes his mind and communicates this to the other party; and the slave should be manumitted after his mind has been changed, he who delivered the slave will, nevertheless, be entitled to bring an action because he changed his mind. It is evident, however, that if the other party does not manumit the slave, the constitution becomes operative, and renders the slave free, if the party who delivered him for this purpose has not yet changed his mind. 2Moreover, where anyone gives Titius ten aurei in order that he may purchase a slave with the money and manumit him, and he afterwards changes his mind; if the slave has not yet been purchased, the change of mind will give him a right of action to recover the money, if he makes this plain to Titius, lest he may purchase the slave afterwards and suffer loss. If, however, the slave has already been purchased, the change of mind will not injure the party who purchased him but, instead of the ten aurei which he received, he must surrender the slave that he purchased; or if, in the case proposed, the slave should have previously died he need not pay anything, provided his death was not caused by him. If, however, the slave has fled, and the party who purchased him was not to blame for it, he will not be required to pay anything; but it is clear that he must promise to restore him if he should ever come into his power. 3But if he received money in order to manumit a slave and he runs away before he is manumitted; let us consider whether what he received can be recovered by a personal action? If, indeed, he had been about to sell the said slave, and failed to do so because he had received money to manumit him, suit for recovery cannot be brought against him. But it is evident that he must give security that if the slave comes into his hands, he will return what he received, after deducting any diminished value the slave may have sustained on account of his flight. There is no doubt that if the party who made the payment is still desirous that the slave should be manumitted, but the other does not wish this to be done, because he is offered on account of his having taken to flight, he must return the entire amount that he received. If, however, the party who paid him the ten aurei chooses to have the slave himself delivered to him; the result will be, that either the slave must be delivered to him or the money which he paid be refunded. But if the party had no intention of selling the slave, then what he received must be returned, unless that if he had not received the money to manumit him he would have guarded him with greater care; for, in this instance, it is not just that he should be deprived of the slave and the entire price as well. 4Where, however, he accepted the money for the purpose of manumitting the slave, and the slave died; then, if he was in default with reference to the manumission, it follows that we must hold that he should refund what he received; but if he was not in default, having started on a journey to see the Governor of the province or any other magistrate before whom proceedings for manumission could be instituted, and the slave died on the journey; the better opinion is that, if he had the intention of selling the slave or of making use of him himself for some purpose, it must be held that he is not obliged to refund anything; for if he had no intention of doing these things, he must sustain the loss resulting from the death of the slave, since he would have died even if his owner had not received the money to manumit him, unless that the journey undertaken in order to manumit him happened to be the cause of his death; as, for instance, if he was killed by robbers, or crushed by the fall of a stable or by being run over by a vehicle, or lost his life in some other way, and this would not have occurred if the journey for the purpose of manumitting him had not been undertaken.

6Idem li­bro ter­tio dis­pu­ta­tio­num. Si ex­tra­neus pro mu­lie­re do­tem de­dis­set et pac­tus es­set, ut, quo­quo mo­do fi­ni­tum es­set ma­tri­mo­nium, dos ei red­de­re­tur, nec fue­rint nup­tiae se­cu­tae, quia de his ca­si­bus so­lum­mo­do fuit con­ven­tum qui ma­tri­mo­nium se­quun­tur, nup­tiae au­tem se­cu­tae non sint, quae­ren­dum erit, utrum mu­lie­ri con­dic­tio an ei qui do­tem de­dit com­pe­tat. et ve­ri­si­mi­le est in hunc quo­que ca­sum eum qui dat si­bi pro­spi­ce­re: nam qua­si cau­sa non se­cu­ta ha­be­re pot­est con­dic­tio­nem, qui ob ma­tri­mo­nium de­dit, ma­tri­mo­nio non co­pu­la­to, ni­si for­te evi­den­tis­si­mis pro­ba­tio­ni­bus mu­lier os­ten­de­rit hoc eum id­eo fe­cis­se, ut ip­si ma­gis mu­lie­ri quam si­bi pro­spi­ce­ret. sed et si pa­ter pro fi­lia det et ita con­ve­nit, ni­si evi­den­ter aliud ac­tum sit, con­dic­tio­nem pa­tri com­pe­te­re Mar­cel­lus ait.

6The Same, Disputations, Book III. Where a stranger gives a dowry for a woman, and it is agreed that in whatever way the marriage may terminate the dowry shall be returned to him, and no marriage should take place; then, because the agreement only had reference to matters which happened after marriage, and the marriage was not celebrated, the question will arise whether the woman has a right of action for recovery, or whether the party who gave the dowry is entitled to one? It is probable, however, that, in this instance also, the party who gave the dowry had a view to his own interest; for he who made the gift on account of the marriage can, if the marriage is not performed, bring an action for recovery as if on the ground of want of consideration, unless the woman should be able to prove by the most convincing evidence that he did this rather for her benefit than for his own advantage. But where a father gives a dowry for his daughter, and an agreement of this kind is made; then, unless the intention was manifestly different, Marcellus says that the father has a right to bring a personal action for its recovery.

7Iu­lia­nus li­bro sex­to de­ci­mo di­ges­to­rum. Qui se de­be­re pe­cu­niam mu­lie­ri pu­ta­bat, ius­su eius do­tis no­mi­ne pro­mi­sit spon­so et sol­vit: nup­tiae de­in­de non in­ter­ces­se­runt: quae­si­tum est, utrum ip­se pot­est re­pe­te­re eam pe­cu­niam qui de­dis­set, an mu­lier. Ner­va, Ati­li­ci­nus re­spon­de­runt, quon­iam pu­tas­set qui­dem de­be­re pe­cu­niam, sed ex­cep­tio­ne do­li ma­li tue­ri se po­tuis­set, ip­sum re­pe­ti­tu­rum. sed si, cum sci­ret se ni­hil mu­lie­ri de­be­re, pro­mis­sis­set, mu­lie­ris es­se ac­tio­nem, quon­iam pe­cu­nia ad eam per­ti­ne­ret. si au­tem ve­re de­bi­tor fuis­set et an­te nup­tias sol­vis­set et nup­tiae se­cu­tae non fuis­sent, ip­se pos­sit con­di­ce­re, cau­sa de­bi­ti in­te­gra mu­lie­ri ad hoc so­lum ma­nen­te, ut ad ni­hil aliud de­bi­tor com­pel­la­tur, ni­si ut ce­dat ei con­dic­ti­cia ac­tio­ne. 1Fun­dus do­tis no­mi­ne tra­di­tus, si nup­tiae in­se­cu­tae non fue­rint, con­dic­tio­ne re­pe­ti pot­est: fruc­tus quo­que con­di­ci pot­erunt. idem iu­ris est de an­cil­la et par­tu eius.

7Julianus, Digest, Book XVI. Some one who thought that he owed a certain sum of money to a woman promised her betrothed, at her request, to pay it to him as dowry, and did so; and afterwards the marriage did not take place. The question arose whether the party who paid the money could recover it, or whether the woman could do so? Nerva and Atilicinus answered that since the party thought that he owed the money, and could have defended himself by an exception based on fraudulent intent, he himself could bring suit; but if he was aware that he did not owe the woman anything, and made the promise, the woman would have the right of action because the money would belong to her. If, however, he had been actually her debtor, and had paid the money before marriage, and the marriage did not take place; he can bring an action to recover the money, and no other right of the woman to payment of the debt would remain than that the debtor could be compelled to assign to her his right of action for recovery, and would be subject to no further liability. 1Where land is conveyed by way of dowry, and the marriage does not take place, it can be recovered by a personal action, and the crops also can be sued for. The same rule applies to a female slave and her children.

8Ne­ra­tius li­bro se­cun­do mem­bra­na­rum. Quod Ser­vius in li­bro de do­ti­bus scri­bit, si in­ter eas per­so­nas, qua­rum al­te­ra non­dum ius­tam ae­ta­tem ha­beat, nup­tiae fac­tae sint, quod do­tis no­mi­ne in­ter­im da­tum sit, re­pe­ti pos­se, sic in­tel­le­gen­dum est, ut, si di­vor­tium in­ter­ces­se­rit, prius­quam utra­que per­so­na ius­tam ae­ta­tem ha­beat, sit eius pe­cu­niae re­pe­ti­tio, do­nec au­tem in eo­dem ha­bi­tu ma­tri­mo­nii per­ma­nent, non ma­gis id re­pe­ti pos­sit, quam quod spon­sa spon­so do­tis no­mi­ne de­de­rit, do­nec ma­neat in­ter eos ad­fi­ni­tas: quod enim ex ea cau­sa non­dum co­ito ma­tri­mo­nio da­tur, cum sic de­tur tam­quam in do­tem per­ven­tu­rum, quam­diu per­ve­ni­re pot­est, re­pe­ti­tio eius non est.

8Neratius, Parchments, Book II. With reference to what Servius states in his book on Dowries; that is, if a marriage has taken place between persons neither of whom has yet reached the proper age, whatever in the meantime has been given by way of dowry can be recovered; we must understand by this that if a divorce is obtained before either person has reached the lawful age, the money may be recovered, but so long as they remain in the state of matrimony the property cannot be recovered any more than where it is given as dowry by a betrothed woman to her betrothed husband, so long as the connection exists between them; for when anything is given on this account before the marriage has been consummated, then, (since it is given in such a way that it may become a dowry) it cannot be recovered as long as it is possible that this may happen.

9Pau­lus li­bro sep­ti­mo de­ci­mo ad Plau­tium. Si do­na­tu­rus mu­lie­ri ius­su eius spon­so nu­me­ra­vi nec nup­tiae se­cu­tae sunt, mu­lier con­di­cet. sed si ego con­tra­xi cum spon­so et pe­cu­niam in hoc de­di, ut, si nup­tiae se­cu­tae es­sent, mu­lie­ri dos ad­quire­re­tur, si non es­sent se­cu­tae, mi­hi red­de­re­tur, qua­si ob rem da­tur et re non se­cu­ta ego a spon­so con­di­cam. 1Si quis in­de­bi­tam pe­cu­niam per er­ro­rem ius­su mu­lie­ris spon­so eius pro­mis­sis­set et nup­tiae se­cu­tae fuis­sent, ex­cep­tio­ne do­li ma­li uti non pot­est: ma­ri­tus enim suum neg­otium ge­rit et ni­hil do­lo fa­cit nec de­ci­pien­dus est: quod fit, si co­ga­tur in­do­ta­tam uxo­rem ha­be­re. ita­que ad­ver­sus mu­lie­rem con­dic­tio ei com­pe­tit, ut aut re­pe­tat ab ea quod ma­ri­to de­dit aut ut li­be­re­tur, si non­dum sol­ve­rit. sed si so­lu­to ma­tri­mo­nio ma­ri­tus pe­te­ret, in eo dum­ta­xat ex­cep­tio­nem ob­sta­re de­be­re, quod mu­lier re­cep­tu­ra es­set.

9Paulus, On Plautius, Book XVII. If I intend to give money to a woman, and pay it to her betrothed as dowry by her direction but the marriage does not take place, the woman has a right of action for its recovery. But if I made a contract with her betrothed, and gave him the money with the understanding that if the marriage was performed the dowry would be acquired by the woman, but if it was not it should be returned to me; it is given as it were in consideration of something, and if this did not take place I can recover it from the betrothed husband. 1Where a person, through mistake, promises to the intended husband of a woman, by her direction, money which he does not owe, and the marriage takes place, he cannot avail himself of an exception on the ground of fraudulent intent; for, as the husband was transacting his own business, he is not guilty of fraud, and should not be deceived, which would be the case if he were compelled to take a wife who was without a dowry. Therefore, the aforesaid party has a right of action for recovery against the woman, and in it he can demand from her what he gave her husband, or that he shall be released from liability if he has not yet made payment. But if the husband should bring an action to recover the money after the marriage has been dissolved, the exception should only be a bar with reference to the amount which the woman would have received.

10Ia­vo­le­nus li­bro pri­mo ex Plau­tio. Si mu­lier ei cui nup­tu­ra erat cum do­tem da­re vel­let, pe­cu­niam quae si­bi de­be­ba­tur ac­cep­tam fe­cit ne­que nup­tiae in­se­cu­tae sunt, rec­te ab eo pe­cu­nia con­di­ce­tur, quia ni­hil in­ter­est, utrum ex nu­me­ra­tio­ne pe­cu­nia ad eum si­ne cau­sa an per ac­cep­ti­la­tio­nem per­ve­ne­rit.

10Javolenus, On Plautius, Book I. Where a woman wishing to give a dowry to the man whom she intends to marry releases him from liability for the money which he owes her, and the marriage does not take place, she can very properly bring suit against him to recover the money; because it makes no difference, since he received it without consideration, whether it was actually paid to him or he obtained a release for it.

11Iu­lia­nus li­bro de­ci­mo di­ges­to­rum. Si he­res ar­bi­tra­tu li­ber­ti cer­ta sum­ma mo­nu­men­tum ius­sus fa­ce­re de­de­rit li­ber­to pe­cu­niam et is ac­cep­ta pe­cu­nia mo­nu­men­tum non fa­ciat, con­dic­tio­ne te­ne­tur.

11Julianus, Digest, Book X. Where an heir who is directed by the decision of a freedman to erect a monument for a certain sum, pays the money to the freedman, and he, having received it, does not erect the monument, he will be liable to an action for the recovery of the money.

12Pau­lus li­bro sex­to ad le­gem Iu­liam et Pa­piam. Cum quis mor­tis cau­sa do­na­tio­nem, cum con­va­luis­set do­na­tor, con­di­cit, fruc­tus quo­que do­na­ta­rum re­rum et par­tus et quod ad­cre­vit rei do­na­tae re­pe­te­re pot­est.

12Paulus, On the Lex Julia et Papia, Book VI. Where anyone brings an action for a donatio mortis causa on the recovery of the party from sickness, he can claim also the produce of the property donated, the children of female slaves, and anything else which may have accrued to the property donated.

13Mar­cia­nus li­bro ter­tio re­gu­la­rum. Si fi­lius con­tu­le­rit fra­tri qua­si ad­gni­tu­rus bo­no­rum pos­ses­sio­nem et non ad­gno­vit, re­pe­te­re eum pos­se Mar­cel­lus li­bro quin­to di­ges­to­rum scri­bit.

13Marcianus, Rules, Book III. Where a son brings any property into hotchpot for his brother as if he were about to institute proceedings for the possession of the estate, and does not do so; Marcellus says in the Fifth Book of the Digest, that he is entitled to an action to recover it.

14Pau­lus li­bro ter­tio ad Sa­binum. Si pro­cu­ra­to­ri fal­so in­de­bi­tum so­lu­tum sit, ita de­mum a pro­cu­ra­to­re re­pe­ti non pot­est, si do­mi­nus ra­tum ha­bue­rit, sed ip­se do­mi­nus te­ne­tur, ut Iu­lia­nus scri­bit. quod si do­mi­nus ra­tum non ha­buis­set, et­iam­si de­bi­ta pe­cu­nia so­lu­ta fuis­set, ab ip­so pro­cu­ra­to­re re­pe­te­tur: non enim qua­si in­de­bi­tum da­tum re­pe­te­tur, sed qua­si ob rem da­tum nec res se­cu­ta sit ra­ti­ha­bitio­ne non in­ter­ce­den­te: vel quod fur­tum fa­ce­ret pe­cu­niae fal­sus pro­cu­ra­tor, cum quo non tan­tum fur­ti agi, sed et­iam con­di­ci ei pos­se.

14Paulus, On Sabinus, Book III. Where a party pays money which he does not owe to one who falsely represents himself as an agent, the money cannot be recovered from the agent unless his alleged principal ratifies the transaction; but, as Julianus states, the principal himself would be liable. Where, however, the principal does not ratify the act, then if the money paid had been actually due, it can be recovered from the alleged agent himself; since an action for the recovery of money paid where there was no debt is not based on this fact, but on the ground that it was paid on account of something which did not take place, and no ratification was made; or suit may be brought because the false agent committed a theft of the money, since he can not only be sued for theft but also in a personal action for recovery.

15Pom­po­nius li­bro vi­cen­si­mo se­cun­do ad Sa­binum. Cum ser­vus tuus in su­spi­cio­nem fur­ti At­tio venis­set, de­dis­ti eum in quaes­tio­nem sub ea cau­sa, ut, si id re­per­tum in eo non es­set, red­de­re­tur ti­bi: is eum tra­di­dit prae­fec­to vi­gi­lum qua­si in fa­ci­no­re de­prae­hen­sum: prae­fec­tus vi­gi­lum eum sum­mo sup­pli­cio ad­fe­cit. ages cum At­tio da­re eum ti­bi opor­te­re, quia et an­te mor­tem da­re ti­bi eum opor­tue­rit. La­beo ait pos­se et­iam ad ex­hi­ben­dum agi, quon­iam fe­ce­rit quo mi­nus ex­hi­be­ret. sed Pro­cu­lus da­ri opor­te­re ita ait, si fe­cis­ses eius ho­mi­nem, quo ca­su ad ex­hi­ben­dum age­re te non pos­se: sed si tuus man­sis­set, et­iam fur­ti te ac­tu­rum cum eo, quia re alie­na ita sit usus, ut sci­ret se in­vi­to do­mi­no uti aut do­mi­num si sci­ret pro­hi­bi­tu­rum es­se.

15Pomponius, On Sabinus, Book XXII. Where one of your slaves was suspected of theft by a certain Attius, and you surrender the slave to be put to torture, under the condition he should be returned to you, if he were found to be not guilty; and then Attius delivered him to the Prefect of the Watch as one who was caught in the act, and the Prefect of the Watch inflicted the extreme penalty upon him; you are entitled to an action against Attius on the ground that he was obliged to deliver you the slave, because he was required to do this before his death. Labeo says that you are entitled to an action for production, since Attius is responsible for preventing him from being produced. Proculus, however, says that for Attius to be obliged to deliver the slave you must have made him his slave, in which instance, you could not bring an action for his production; but if he had still remained yours, you could bring an action against Attius for theft, because he was making use of the property of another in such a way that he must have been aware that he was doing so against the will of the owner, or that if the latter had been aware of it he would have forbidden it.

16Cel­sus li­bro ter­tio di­ges­to­rum. De­di ti­bi pe­cu­niam, ut mi­hi Sti­chum da­res: utrum id con­trac­tus ge­nus pro por­tio­ne emp­tio­nis et ven­di­tio­nis est, an nul­la hic alia ob­li­ga­tio est quam ob rem da­ti re non se­cu­ta? in quod pro­cli­vior sum: et id­eo, si mor­tuus est Sti­chus, re­pe­te­re pos­sum quod id­eo ti­bi de­di, ut mi­hi Sti­chum da­res. fin­ge alie­num es­se Sti­chum, sed te ta­men eum tra­di­dis­se: re­pe­te­re a te pe­cu­niam pot­ero, quia ho­mi­nem ac­ci­pien­tis non fe­ce­ris: et rur­sus, si tuus est Sti­chus et pro evic­tio­ne eius pro­mit­te­re non vis, non li­be­ra­be­ris, quo mi­nus a te pe­cu­niam re­pe­te­re pos­sim.

16Celsus, Digest, Book III. I paid you a sum of money on the condition that you should deliver Stichus to me; is this kind of a contract one of incomplete purchase and sale, or does no other obligation arise from it than would from property given in consideration of something which did not take place? I am rather inclined to adopt the last opinion; and therefore, if Stichus had died, I could recover the amount which I gave on the condition that you would deliver Stichus to me. Suppose, for instance, that Stichus belonged to some one else, but you, nevertheless, delivered him to me; I can recover the money from you because you did not transfer the ownership of the slave to the party who received him; and, again, if Stichus is your property, and you are not willing to give security against his recovery by anyone having a better title, you will not be released so that I cannot bring suit to recover the money from you.