DE CONDICTIONE CAUSA DATA CAUSA

NON SECUTA.

D. 12. 4.

1. ULPIANUS libro uicensimo sexto ad edictum. Si ob rem non inhonestam data sit pecunia, ut filius emanciparetur uel seruus manumitteretur uel a lite discedatur, causa secuta repetitio cessat. (1.) Si parendi condicioni causa tibi dedero decem, mox repudiauero hereditatem uel legatum, possum condicere.

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

1. Ulpian. If money has been given for a purpose which is not improper, that a son, for instance, may be emancipated, or a slave manumitted, or a suit abandoned, recovery is not allowed when the purpose has been carried out. 1. If I give you ten aurei in order that I may comply with a condition', and afterwards decline the inheritance or legacy, I can bring a condiction.

2. Hermogenian. So too if a testament be declared false or inofficious without fault on the part of the man who gave the money, the ten aurei can be recovered on the ground of the purpose not having been effected.

1 He complies with a condition which will entitle him to the offer of the inheritance, not with one which actually makes him heir: if he had once complied with a con

dition of the last mentioned purport, his opportunity of renouncing the inheritance would have been lost. D. 28. 5. 86. pr. : D. 35. I. 5.

3.

ULPIANUS libro uicensimo sexto ad edictum. Dedi tibi pecuniam, ne ad iudicem iretur: quasi decidi. an possim condicere, si mihi non caueatur ad iudicem non iri? et est uerum 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. (1.) Idem erit et si tibi dedero, ne Stichum manumittas: nam secundum distinctionem supra scriptam aut admittenda erit repetitio aut inhibenda. (2.) Sed si tibi dedero, ut Stichum manumittas: si non facis, possum condicere, aut si me poeniteat, condicere possum. (3.) Quid si

3.

Ulpian. I gave you money in order that a case might not go on to a hearing, (but be) as if I had made a compromise'. Can I bring a condiction for the money, if sureties are not provided that the case shall not go on to a hearing? We must hold that it makes a great difference whether I gave you money solely on consideration that the case should not proceed, or on consideration that sureties also should be given me for the case not proceeding if for the latter consideration, viz. that sureties also should be given, there can be a condiction, supposing the sureties are not furnished; if on consideration that the case should not proceed, the condiction cannot be brought, so long as there is no further proceeding. I. So also will it be if I have given you money not to manumit Stichus; for recovery will be allowed to me or forbidden, in accordance with the above-named distinction. But supposing I have given you money to manumit Stichus if you do not do it, I can bring the condiction; or if I change my mind, I can bring the condiction.

2.

1 There was not formality enough in what was done to constitute a transactio; if there had been, the transactio could have been pleaded as an exception; but we simply agreed that I should have the same advantage as if there had been a transactio, and I paid you money on this consideration: and though I could not resist your suit, I could recover my money if you brought it. Gothofred, however, takes quasi in a different sense and translates: I gave you money, &c., that is I made

3. But

a compromise with you." But if there was a binding compromise, then, as stated above, it could be pleaded as an exception, and so the payer of the money had got his causa, viz. protection against a suit.

2 Sc. if you do not do it after receiving formal notice from me to carry out your agreement. No one was in mora till he received notice, unless in his agreement a time was mentioned; then, however, tempus interpellat pro homine.

ita dedi, ut intra certum tempus manumittas? si nondum tempus praeteriit, inhibenda erit repetitio, nisi poeniteat: 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. (4.) Quin 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. (5.) Si liber homo, qui bona fide seruiebat, 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, what if I have given you it to manumit him within a certain time? If the time has not yet expired, recovery will be forbidden, unless I change my mind: but if the time has expired, there can be a condiction. But if Stichus be dead, can the money which was given be recovered? Proculus says that recovery is allowable, if he died after the time when he could have been manumitted', but not otherwise. 4. Nay further, even if I gave you nothing to manumit him, but we agreed that I should give something, still the action which arises under this contract, i.e. the condiction, can be brought by you, although he be dead. 5. If a free man, whilst serving me in good faith, gave me money to set him free, and I did so; it is asked whether he can sue me, if afterwards he has been proved a free man. And Julian in the eleventh book of his Digests, says, that the manumitted man is able to recover3. Neratius also in his book of Membranæ relates that Paris, the actor, recovered before a judex from Domitia, the daughter of Nero, ten aurei,

repetisse per iudicem nec fuisse quaesitum, an Domitia sciens liberum accepisset. (6.) Si quis quasi statuliber mihi decem dederit, cum iussus non esset, condicere eum decem Celsus scribit. (7.) Sed si seruus, 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 uerior est, quamquam constet, ut et ipse ait, eum qui dedit ea spe, quod se ab eo qui acceperit remunerari existimaret uel amiciorem sibi esse eum futurum, repetere non posse opinione falsa deceptum. (8.) Suptilius quoque illud tractat, an ille, qui se statuliberum putauerit, nec fecerit nummos accipientis, quoniam heredi dedit quasi ipsius heredis nummos daturus, non

which he had given her for his freedom, and the question was not raised whether Domitia had taken the money with knowledge that he was free'. 6. If any one has given me ten aurei, thinking that he is to have his freedom on that condition, whereas he was never directed to do this, Celsus says he can bring a condiction. 7. But if a slave, who has been ordered in a testament to give ten aurei to the heir and have his freedom, has received an absolute gift of freedom in a codicil, and not knowing the latter fact, has paid the ten aurei to the heir, can he recover it? And he records that his father Celsus thought he could not recover; but Celsus himself, following natural equity, thinks he can: and this opinion is the more correct one, although it is well-established, as Celsus himself also says, that any one who has given with the hope and thought that he will be rewarded by the receiver, or that the receiver will be a better friend to him, cannot recover, if he is deceived by a false expectation. 8. He also discusses minutely this question, whether the man who believed he was to be free on condition3, did not fail to make the money the property of the receiver; for he gave it to the heir on the

1 The decision went against her on the mere ground that she had taken money to do what she could not possibly do.

2 The expectation is not communicated to the other, and there

fore is no part of the contract: it is also too vague, even if communicated.

3 Sc. on the condition of giving 10 aurei. Ulpian is still discussing the case stated in 12. 4. 3. 7.

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. (9.) Quamquam permissum sit statulibero etiam de peculio dare implendae condicionis causa, si tamen uult heres nummos saluos facere, potest eum uetare dare: sic enim fiet, ut et statuliber perueniat ad libertatem quasi impleta condicione cui parere prohibitus est, et supposition that he was giving him his own (the heir's) money, and not the donor's, although all the same it was the donor's, having been acquired, let us suppose, after liberty had accrued to him by the testament. And I think, if he gave it under this impression, it does not become the heir's. For in the case also where I give you my own money, thinking it to be yours, I do not make it yours'. What then if he gave it, not to the heir, but to some other person, to whom he thought he was ordered (to give it)? If he gave money out of his peculium, he did not make it the property of the receiver; but if, after he became free, some other person gave it on his behalf, or if he himself gave it, it will become the property of the receiver. 9. Although a statuliber has received permission to pay the money out of his peculium to fulfil the condition (of his freedom), yet the heir, if he wishes to retain the money, can forbid him to pay it for then the result will be that the statuliber will arrive at freedom, the condition being regarded as fulfilled when he is forbidden to carry it out, and the money will not be lost.

1 There must be consent between the parties as to the transfer of ownership one must wish to part with ownership and confer it on the other; that other must wish to receive it as a new property. See D. 41. 1. 35: D. 18. 1. 15. 2.

2 Pothier says liber factus refers to the whole of the words immediately preceding, the meaning being "if he was freed first, and then either procured the money from a stranger and gave it, or gave it out of his own property." So also Accursius.

3 Sc. in the testament.

4 The law always favours liberty, and therefore in the present case will not allow the statuliber to be defrauded of his freedom. The condition, which he is unable to fulfil because of the heir's prohibition, is treated as fulfilled, in accordance with the general principle "jure civili receptum est quoties per eum, cujus interest conditionem (non) impleri, fit quominus impleatur, ut perinde habeatur ac si impleta conditio fuisset." D. 35. 1. 24. Compare D.