rem suam procurator factus est. respondit secundum ea quae proponerentur ei, qui postea soluisset. (3.) Idem quaesiit, an pactum, quod in pariationibus adscribi solet in hunc modum 'ex hoc contractu nullam inter se controuersiam amplius esse' impediat repetitionem. respondit nihil proponi, cur impediret. (4.) Lucius Titius Gaio Seio minori annis uiginti quinque pecuniam certam credidit et ab eo aliquantum usurarum nomine accepit, et Gaii Seii minoris heres aduersus Publium Maeuium a praeside prouinciae in integrum restitutus est, ne debitum hereditarium solueret, et nec quicquam de usuris eiusdem sortis, quas Seius minor annis uiginti quinque exsolueret, repetendis tractatum apud praesidem aut ab eo est pronuntiatum: quaero, an usuras, quas Gaius Seius minor annis uiginti quinque quoad uiueret creditori exsolueret, heres eius repetere possit. respondit secundum ea quae proponerentur condici id,

benefit? It was answered, that according to the circumstances stated, the one who made the second payment could recover. 3. It was also asked whether the pact usually introduced into settlements of account', "that on this matter there shall be no further controversy between the parties," prevents recovery. It was answered that nothing was stated which would prevent this. 4. Lucius Titius lent a certain sum of money to Gaius Seius, who was under twenty-five years of age, and received from him a certain amount by way of interest; and the heir of Gaius Seius, the minor, obtained from the governor of the province restitutio in integrum against Publius Maevius, in order that he might not have to pay the inherited debt; but there was no mention made before the governor, and no decree issued by him, as to the recovery of the interest on the said principal, which Seius had paid whilst under twenty-five years of age. I wish to know whether the heir can recover the interest which Gaius Seius the minor paid to the creditor during his life-time. It was answered, that according to the case propounded there could be no condiction for what the dead man

1 Pariatio=debitorum ac nominum exaequatio. Dirksen.

2 The pariatio is merely a settlement according to the rules of arith

metic, but does not affect the question of the account being legally due or not due.

item

quod usurarum nomine defunctus soluisset, non posse. quaero, si existimes repeti non posse, an ex alio debito heres retinere eas possit. respondit ne hoc quidem.

had paid by way of interest'. I also wish to know, if you think there could be no recovery, whether the heir can retain it out of another debt. The answer was that not even this could be done.

1 Because it had not been claimed in the application for restitutio in

integrum, and was due morally.

DE CONDICTIONE SINE CAUSA.

D. 12. 7.

1. ULPIANUS libro quadragensimo tertio ad Sabinum. Est et haec species condictionis, si quis sine causa promiserit uel si soluerit quis indebitum. qui autem promisit sine causa, condicere quantitatem non potest quam non dedit, sed ipsam obligationem. (1.) Sed et si ob causam promisit, causa tamen secuta non est, dicendum est condictionem locum habere. (2.) Siue ab initio sine causa promissum est, siue fuit causa promittendi quae finita est uel secuta non est, dicendum est condictioni locum fore. (3.) Constat id demum

1. Ulpian. The variety of condiction available, if any one has promised without cause, can also be employed, even when a person has paid what is not due'. But he who has (merely) promised without cause cannot bring a condiction for an amount, because he has not given one, but must bring one for (rescission of) the obligation. 1. And again, if he promised for a cause, and the cause has not come to pass, we must allow that this condiction will apply. 2. So, whether the promise was originally without cause, or there was a cause for promising, which came to an end or did not take effect, we must allow that there is opportunity for this condiction. 3. It is well

1 Sc. the condictio sine causa is concurrent with the condictio indebiti.

2 Sc. the condictio sine causa is concurrent with that causa data causa non secuta.

posse condici alicui, quod uel non ex iusta causa ad eum peruenit uel redit ad non iustam causam.

2. IDEM libro trigensimo secundo ad edictum. Si fullo uestimenta lauanda conduxerit, deinde amissis eis domino pretium ex locato conuentus praestiterit posteaque dominus inuenerit uestimenta, qua actione debeat consequi pretium quod dedit? et ait Cassius eum non solum ex conducto agere, uerum 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 uestimentis inuentis quasi sine causa datum uidetur.

3. IULIANUS libro octauo digestorum. Qui sine causa

established that a man is liable to this condiction only on account of something which has come to him for no proper cause', or for a cause which becomes an improper cause.

2. Ulpian. If a fuller contracted to scour garments, and was sued ex locato when the garments were lost, and paid the price to the owner, and the owner subsequently found the garments; by what action ought he to recover the price which he paid? Cassius says that he can not only sue ex conducto, but can also bring a condiction against the owner. I think he certainly has the action ex conducto3; but it has been doubted whether he can also bring a condiction, seeing that he did not give what was not due: unless, indeed, we think that there can be a condiction on account of the gift being without cause, for when the garments are found it seems to have been given without cause.

3. Julian. Those who bind themselves without cause,

1 Hence the condictio sine causa is concurrent with that ob injustam

causam.

2 Cujas says that the condictio sine causa cannot be concurrent with another action, but only employed when other remedies fail (ad Afric. Tract. 2). The present passage, however, militates against his theory, and we have already seen that this condictio can be concurrent with other

condictiones.

3 Pothier remarks that in the actio ex conducto, as in all other bonae fidei actions, there can be a claim on the implied undertaking "dolum malum abesse, abfuturumque esse." The locator therefore who attempts to keep both the money he received and the garments he has recovered is guilty of dolus.

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: ueluti 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.

4. AFRICANUS libro octauo quaestionum. Nihil refert, utrumne ab initio sine causa quid datum sit an causa, propter quam datum sit, secuta non sit.

5. PAPINIANUS libro undecimo quaestionum. Auunculo 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

can by condictio incerti1 obtain their release: and it matters not whether a man takes on himself an obligation that is altogether groundless or one greater than he ought to undertake, except that the object of the condiction is in the one case that he may be released from the whole obligation, in the other that he may be relieved. For instance, a person who has promised ten aurei, if he had no cause at all for promising, obtains by means of the condictio incerti an acquittance from the entire stipulation; but if he promised ten when he ought to have promised five, he will obtain by the condictio incerti a release from five.

4. Africanus. It is immaterial whether a gift be originally without reason or the reason for which it was made do not take effect.

5. Papinian. A woman, purposing to be married to her uncle, gave him money as a marriage-portion, and then was not married to him. It was asked whether she could recover

I replied, when money is paid for a reason disgraceful both to giver and receiver, the condiction will not apply; and the turpitude being equal, the possessor has the better title.

1 Sc. condictio sine causa incerti, for the condictio sine causa, like the

other condictions, can be certi, triticaria or incerti.