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 inuito domino uti aut dominum si sciret prohibiturum esse.

Dedi tibi pecuniam,

16. CELSUS libro tertio digestorum. ut mihi Stichum dares: utrum id contractus genus pro portione emptionis et uenditionis est an nulla hic alia obligatio est quam ob rem data re non secuta? in quod procliuior 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,

ble to bring an actio ad exhibendum, because he made his production of him impossible. But Proculus says, if you made the slave his property, his obligation is to give back the slave; and in that case you cannot sue ad exhibendum: but, if he had remained your slave, you could also have proceeded against Attius for theft, because he has used the property of another person in a manner in which he knew the owner did not intend him to use it, and that the owner would have prevented him, if he had known1.

16. Celsus. I gave you money in order that you might give me Stichus; is a contract of this kind an instance of buying and selling, or does no other obligation here arise than that of a gift "for a purpose, and the purpose unfulfilled"? I am inclined to take the view last-mentioned, and so, if Stichus be dead, I can recover the money which I gave you in consideration of your giving Stichus to me3. Suppose Stichus belonged to some other person, and that you nevertheless delivered him; I can recover the money from you*, because

by delivering him to the Prefect before examination Attius prevented the examination taking place at all. 1 Just. Inst. 4. I. 6.

2 Cujas says there is no sale, because in a sale you would merely undertake "mihi licere habere Stichum"; whereas in the instance before us, you go further, and engage

"dare Stichum," or to transfer actual ownership to me.

3 There would be no recovery if the transaction had been a sale. See D. 18. 6, passim.

4 Sc. prior to my eviction. In a sale mere liability to eviction will not be taken into account, but the eviction must actually take place in

qui hominem accipientis non feceris: et rursus, si tuus est Stichus et pro euictione eius promittere non uis, non liberaberis, quo minus a te pecuniam repetere possim.

you did not make the slave the property of the receiver: and again, if Stichus belongs to you, and you will not guarantee me against eviction', you will not be clear of the risk of my reclaiming the money from you.

order that legal proceedings may be instituted.

1 I have a right to this security, as

a part of the dominium which you engaged to confer upon me.

DE CONDICTIONE OB TURPEM VEL

INIUSTAM CAUSAM.

D. 12. 5.

1. PAULUS libro decimo ad Sabinum. Omne quod datur aut ob rem datur aut ob causam, et ob rem aut turpem aut honestam turpem autem, aut ut dantis sit turpitudo, non accipientis, aut ut accipientis dumtaxat, non etiam dantis, aut utriusque. (1.) Ob rem igitur honestam datum ita repeti potest, si res, propter quam datum est, secuta non est. (2.) Quod si turpis causa accipientis fuerit, etiamsi res secuta sit, repeti potest :

2. ULPIANUS libro uicensimo sexto ad edictum. ut puta dedi tibi ne sacrilegium facias, ne furtum, ne hominem occidas.

1. Paulus. Everything which is given is given either for a purpose or for a reason': and (if for a purpose) for a purpose that is dishonourable or honourable, and (if dishonourable) dishonourable either because the donor only acts dishonourably and not the receiver, or the receiver only and not the donor, or both of them. I. Hence, that which has been given for an honourable purpose can only be recovered, when the purpose for which it was given has not come to pass. 2. But if the purpose was dishonourable on the side of the receiver, it can be recovered, even though the purpose has come to pass:

2. Ulpian. As, for instance, when I have given you money not to commit sacrilege, or theft or murder. And Julian

1 Sc. in order that something may be done in the future, or because something has been done in the past. See D. 12. 6. 52.

2 Or has come to pass, though the donor notified, ex poenitentia, that he did not desire it to be brought about. D. 12. 4. 5. 1 and 2.

in qua specie Iulianus scribit, si tibi dedero, ne hominem occidas, condici posse: (1.) Item si tibi dedero, ut rem mihi reddas depositam apud te uel ut instrumentum mihi redderes. (2.) Sed si dedi, ut secundum me in bona causa iudex pronuntiaret, est quidem relatum condictioni locum esse: sed hic quoque crimen contrahit (iudicem enim corrumpere uidetur) et non ita pridem imperator noster constituit litem eum perdere.

3. PAULUS libro decimo ad Sabinum. Ubi autem et dantis et accipientis turpitudo uersatur, non posse repeti dicimus ueluti si pecunia detur, ut male iudicetur.

:

4. ULPIANUS libro uicensimo sexto ad edictum. Idem si ob stuprum datum sit, uel si quis in adulterio deprehensus redemerit se cessat enim repetitio, idque Sabinus et Pegasus responderunt. (1.) Item si dederit fur, ne proderetur, quoniam

says in reference to the last-named example, if I have given you money not to commit a murder, a condiction can be brought for it; (1) and so too if I have given you money to restore to me an article deposited with you, or to deliver up a document. 2. And even if I gave money in order that a judex might pronounce in my favour in a case where I was in the right, it has been laid down that the condiction may be brought: but in this instance the donor also is in fault (for he is considered to corrupt the judex), and not so very long ago our Emperor decided that the donor lost his suit1.

3. Paulus. But when there is a dishonourable purpose on the part of the giver as well as the receiver, we say that recovery is not possible: when, for instance, money is given to obtain an unfair judgment.

4. Ulpian. So too, if it has been given for prostitution, or in order that a man detected in adultery may buy indemnity": for recovery is not allowed, and this was the opinion of Sabinus and Pegasus. I. So too, if a thief has given money not to be informed against, since there is a dishonourable purpose on

1 Sc. his suit against the judex for recovery of what he had given him. The suitor and the judex are equally in fault, and therefore the court can entertain no suit, because "in pari causa possessor potior haberi debetur," D. 50. 17. 128.

2 This passage is not contradic

tory to D. 4. 2. 7. 1, although at first view it seems so. The explanation is, that an adulterer who freely pays money cannot recover it, although one who pays under the influence of intimidation can; not, however, by the condictio, but by the actio quod

metus causa.

utriusque turpitudo uersatur, cessat repetitio. (2.) Quotiens autem solius accipientis turpitudo uersatur, Celsus ait repeti posse: ueluti si tibi dedero, ne mihi iniuriam facias. (3.) Sed quod meretrici datur, repeti non potest, ut Labeo et Marcellus scribunt, sed noua ratione, non ea, quod utriusque turpitudo uersatur, sed solius dantis: illam enim turpiter facere, quod sit meretrix, non turpiter accipere, cum sit meretrix. (4.) Si tibi indicium dedero, ut fugitiuum meum indices uel furem rerum mearum, non poterit repeti quod datum est: nec enim turpiter accepisti. quod si a fugitiuo meo acceperis ne eum indicares, condicere tibi hoc quasi furi possim : sed si ipse fur indicium a me accepit uel furis uel fugitiui socius, puto condictionem locum habere.

5. IULIANUS libro tertio ad Urseium Ferocem. Si a seruo meo pecuniam quis accepisset, ne furtum ab eo factum both sides, no recovery is possible. 2. But whenever there is a dishonourable purpose on the part of the receiver only, Celsus says recovery is possible, as, for instance, when I have given money to you in order that you may not commit an injury upon me. 3. And money given to a harlot cannot be recovered, as Labeo and Marcellus state; though they say so for a strange reason, not because there is dishonourable purpose on both sides, but because there is on the part of the giver only; for the woman acts disgracefully in being a harlot, but does not receive disgracefully when she is a harlot. 4. If I have given you a reward' to discover my runaway slave or the stealer of my goods, what has been given cannot be recovered for you have not received it for a disgraceful purpose. But if you received money from my runaway slave not to discover him, for this I can bring a condiction against you as a thief and so too if the thief himself received from me a reward for information, or if the accomplice of the thief or runaway did so, I think the condiction can be brought3.

5. Julian. If any one received money from my slave not to give information as to a theft committed by him, whether he

1 Indicium=praemium delationis. Dirksen.

2 I can bring a condictio furtiva; for as you knew the slave was a runaway, you also knew that he was giving you my money; or, at any

rate, money which was not his own, even if you did not know who was his master.

3 In this case the condiction is ob turpem causam.