De condictione causa data causa non secuta
(Concerning a Suit for the Recovery of Property Given for a Consideration Which Does Not Take Place.)
1 Ulpianus 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.
1 Ulpianus, 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.
2 Hermogenianus libro secundo iuris epitomarum. Sed et si falsum testamentum sine scelere eius qui dedit vel inofficiosum pronuntietur, veluti causa non secuta decem repetentur.
2 Hermogenianus, 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.
3 Ulpianus 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.
3 Ulpianus, 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.
4 Idem 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.
4 The 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.
5 Idem 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.
5 The 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.
6 Idem 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.
6 The 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.
7 Iulianus 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.
7 Julianus, 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.
8 Neratius 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.
8 Neratius, 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.
9 Paulus 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.
9 Paulus, 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.
10 Iavolenus 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.
10 Javolenus, 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.
11 Iulianus libro decimo digestorum. Si heres arbitratu liberti certa summa monumentum iussus facere dederit liberto pecuniam et is accepta pecunia monumentum non faciat, condictione tenetur.
11 Julianus, 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.
12 Paulus 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.
12 Paulus, 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.
13 Marcianus libro tertio regularum. Si filius contulerit fratri quasi adgniturus bonorum possessionem et non adgnovit, repetere eum posse Marcellus libro quinto digestorum scribit.
13 Marcianus, 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.
14 Paulus 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.
14 Paulus, 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.
15 Pomponius 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.
15 Pomponius, 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.
16 Celsus 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.
16 Celsus, 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.