De condictione sine causa
(Concerning an action for recovery without ground.)
1 Ulpianus libro quadragensimo tertio ad Sabinum. Est et haec species condictionis, si quis sine causa promiserit vel si solverit quis indebitum. qui autem promisit sine causa, condicere quantitatem non potest quam non dedit, sed ipsam obligationem. 1Sed et si ob causam promisit, causa tamen secuta non est, dicendum est condictionem locum habere. 2Sive ab initio sine causa promissum est, sive fuit causa promittendi quae finita est vel secuta non est, dicendum est condictioni locum fore. 3Constat id demum posse condici alicui, quod vel non ex iusta causa ad eum pervenit vel redit ad non iustam causam.
1 Ulpianus, On Sabinus, Book XLIII. There is also the following kind of a personal action for recovery where anyone makes a promise without consideration, or where he pays something that was not due. Where a party makes a promise without consideration, he cannot bring an action for an amount which he did not give, but only for the obligation itself. 1But even though he may have promised for a consideration but the consideration did not take effect, it must be held that there would be ground for an action for recovery. 2Whether the promise was made without consideration in the beginning, or in consideration of a promise which is terminated, or did not take effect, it must be said that there will be ground for an action for recovery. 3It is established that a suit for recovery can be brought against the party only where the property came into his possession without a valid consideration, or for some consideration which has ceased to be valid.
2 Idem libro trigensimo secundo ad edictum. Si fullo vestimenta lavanda conduxerit, deinde amissis eis domino pretium ex locato conventus praestiterit posteaque dominus invenerit vestimenta, qua actione debeat consequi pretium quod dedit? et ait Cassius eum non solum ex conducto agere, verum condicere domino posse: ego puto ex conducto omnimodo eum habere actionem: an autem et condicere possit, quaesitum est, quia non indebitum dedit: nisi forte quasi sine causa datum sic putamus condici posse: etenim vestimentis inventis quasi sine causa datum videtur.
2 The Same, On the Edict, Book XXXII. Where a fuller made a contract to clean some clothes, and the clothes being lost, he is sued on the contract and pays their value to the owner, and the owner afterwards finds the clothes; what kind of an action must the fuller bring to recover the amount which he paid? Cassius says that he not only can bring an action on contract, but also one for recovery against the owner. I think that he has, at all events, a right of action under a contract, but with respect to the suit for a recovery there is a question, because he did not pay what was not due; unless, indeed, we can hold that an action for recovery can be brought on the ground that the money was paid without any consideration, for the clothes having been found, this would seem to be the case.
3 Iulianus libro octavo digestorum. Qui sine causa obligantur, incerti condictione consequi possunt ut liberentur: nec refert, omnem quis obligationem sine causa suscipiat an maiorem quam suscipere eum oportuerit, nisi quod alias condictione id agitur, ut omni obligatione liberetur, alias ut exoneretur: veluti qui decem promisit, nam si quidem nullam causam promittendi habuit, incerti condictione consequitur, ut tota stipulatio accepto fiat, at si, cum quinque promittere deberet, decem promisit, incerti consequetur, ut quinque liberetur.
3 Julianus, Digest, Book VIII. Where parties bind themselves without any reason for doing so, they can obtain a release by means of a suit brought for an uncertain amount, and it makes no difference whether the party contracted the entire obligation without any ground, or a greater one than there was any necessity for; unless, indeed, the proceedings brought to release him from every obligation whatsoever are different from those brought to discharge him from liability for part of the obligation; for example, where a party promised to pay ten aurei, for, if he had no reason to make the promise, he can, by means of an action for an uncertain amount obtain a release from the entire stipulation; but if he promised to pay ten aurei when he ought only to have promised five, he can, by means of an action for an uncertain amount, secure his release from the payment of five.
4 Africanus libro octavo quaestionum. Nihil refert, utrumne ab initio sine causa quid datum sit an causa, propter quam datum sit, secuta non sit.
4 Africanus, Questions, Book VIII. It is of no consequence whether something was given in the beginning without consideration, or whether it was given for a consideration which did not take place.
5 Papinianus libro undecimo quaestionum. Avunculo nuptura pecuniam in dotem dedit neque nupsit: an eandem repetere possit, quaesitum est. dixi, cum ob turpem causam dantis et accipientis pecunia numeretur, cessare condictionem et in delicto pari potiorem esse possessorem: quam rationem fortassis aliquem secutum respondere non habituram mulierem condictionem: sed recte defendi non turpem causam in proposito quam nullam fuisse, cum pecunia quae daretur in dotem converti nequiret: non enim stupri, sed matrimonii gratia datam esse. 1Noverca privigno, nurus socero pecuniam dotis nomine dedit neque nupsit. cessare condictio prima facie videtur, quoniam iure gentium incestum committitur: atquin vel magis in ea specie nulla causa dotis dandae fuit, condictio igitur competit.
5 Papinianus, Questions, Book XI. Where a woman who was about to be married to a maternal uncle, gave a sum of money as dowry, but did not marry him, the question arose whether she could bring an action for the recovery of the money? I said that where money was paid for some immoral consideration which affected both the giver and the receiver, an action for recovery would not lie, and where both of them are equally culpable, the possessor has the advantage; and that anyone who adopted this principle perhaps would answer that the woman could not bring an action for recovery; but, on the other hand, it could be justly maintained that the question to be considered was not so much that the consideration was immoral, as that there was no consideration at all; since the money which was paid could not be converted into a dowry, as it was paid not for the purpose of unlawful cohabitation but on account of matrimony. 1A stepmother paid a sum of money as dowry for her marriage to her stepson, and a daughter-in-law also did this for her marriage to her father-in-law, and neither marriage took place. It would seem at first view that an action for recovery of the money would not lie, since an union of this kind is incest by the Law of Nations; still, in such instances it is the better opinion that there was no consideration for giving the dowry, and therefore an action for its recovery will lie.