were afterwards brought into use, on states of fact analogous to those which gave rise to the condictions of earliest date.

But we cannot consider what these new condictions were, without first, or rather simultaneously, observing how the original condictions were extended in their application to new

cases.

We have said that the earliest condictions were allowed when a man, not intending a gift, parted freely with property and detention; but it is highly probable that this statement ought to be still further restricted, and that we ought to believe that at first mutuum alone, in its strictest acceptation of a loan of money, was brought under the protection of the Condiction. The wording of the rubric of D. 12. 1, taken in connection with its contents, indicates this; for the heading of the title speaks generally of res creditae, and yet the excerpts deal, with very few exceptions, with loans of money. There are certainly passages here and there in the Title which indicate that condictions can be brought to enforce any lawful expectation, whether certain or uncertain, arising from the fact of another being enriched by the diminution of our property, but the bulk of it deals with loans in kind, and in fact almost entirely with loans of money'. Yet, as our confidence in another's promise to return money is in nature identical with our confidence in his promise to return res fungibiles of any description, and that again is closely connected with confidence in his promise to return a specific thing, or one thing as the equivalent for another, it would seem highly probable (1) that the condictio was at a very early date made applicable to mutuum in all its varieties, and (2) that the condictio causa data causa non secuta, or, as Savigny calls it, the condictio ob causam datorum, sprung into existence after no long interval, to remedy the wilful or accidental non-performance of a contract of exchange; its object being not to obtain what was promised,

1 The words creditor and creditum clearly applied specially to cases where money was lent; as we may see from D. 50. 16. 10: "sed si non

sit mutua pecunia, sed contractus, creditores accipiuntur." See also D. 50. 16. 11 and 12: D. 5. 1. 20: D. 44.7.5.2.

but to recover money, other res fungibiles, or even a specific thing, given in consideration of the unfulfilled promise. Probably this latter condictio had no distinguishing appellation at first, and at any rate it was always regarded, in conformity with fact, as a mere branch of the old condictio; and hence we see what is meant in such passages as D. 12. I. I. I, or D. 12. I. 4. 1, where we read: "ideo sub hoc titulo Praetor et de commodato et de pignore edixit," and "res pignori data pecunia soluta condici potest." See also D. 16. 3. 13. 1. Hence we start with two condictions:

(A). Condictio, simple and without epithet, for the recovery of a mutuum, or a specific thing bailed;

(B). Condictio causa data causa non secuta, for the recovery of what we gave, when the other party fails to give us a different thing which he promised in exchange.

But, the principle on which these are based being not so much that there has been a promise, as that our patrimony has been unfairly diminished to the increase of the patrimony of another person, we find that the scope of the original condictions was extended, and that new condictions were introduced in certain analogous cases.

(C). The condictio simple was extended to cases where detention had been delivered without property, and the bailee wrongfully assumed property, by consumption or sale of the goods in his charge': for it was contrary to natural equity that the bad faith of the debtor should put him in a better position than the confidence of the creditor would have done. Savigny says "the bailee here destroys the bailor's vindicatio, and so the bailor receives a condictio instead." This conversion of detention into property invariably gives rise to a condictio, and

1 This qualification is necessary, for if they could be identified there was a vindicatio.

2 Röm. Recht. App. XIV. § 6. See D. 12. I. 13. 1; D. 16. 3. 13. I. In D. 42. 5. 24. 2 we have the maxim; "aliud est enim credere, aliud de

ponere," which clearly signifies that a depositum does not of itself give rise to a condiction, but to a vindication; fraud, however, on the part of the depositarius may convert the depositum into a creditum, and then there is a condiction.

therefore may occur in the cases of depositum, commodatum, pignus, mandatum, societas, tutela, locatio, or negotia gesta'.

(D). A condictio proper, on the same ground of one person being unfairly enriched at the expense of another, was also granted in the case where a bona fide detainor of my property had consumed it, or alienated it, and was profited thereby; although equity required that in this case, where both parties were innocent, the condiction should not be for the amount of my loss, but for the amount of the other's profit.

(E). The condictio proper was also extended (but for a totally different reason, viz. the will of the parties, without any reference to one gaining through the other's loss) to cases where engagements of a definite character, but having in themselves no guarantee beyond good faith, were put by consent of the parties under the sanction of some form to which the Law attached a binding force, viz. nexi obligatio or expensilatio in olden times, stipulatio throughout the classic period of Roman Law, and litterarum obligatio in the days of Justinian.

(F). For a connected reason, the condictio proper became the process for recovery of a legacy per damnationem, and therefore after Nero's S. C. (Gai. Comm. 2. 197) for the recovery of any legacy; not because the legatee had lost property and the heir profited thereby; for the legatee had never had either detention or property of that which was bequeathed to him; but because in ancient times testaments were celebrated per nexum, and therefore the heir was bound by a formality to which, as familiae emptor, he had given personal consent. This obligation still remained, because of its intrinsic equity, when the familiae emptor was no longer the heres, and when nexum was no longer part of the formalities of making a testament.

(G). A condiction was also granted when detention and property had been freely parted with, but rather through mistake or the wrongful dealing of another, than through confidence, and so arose the condictiones indebiti, sine causa, and ob turpem vel injustam causam, on which we shall have

D.

1 See D. 12. 2. 28. 4: D. 17. 2. 45-47: D. 27. 3. 5: D. 44. 2. 5: 44.7.34.2.

more to say hereafter; but which all agree in this, that the causa, or ground, is a mistake of some sort, i.e. either of fact or law. These condictions could be brought for recovering the exercise of rights, although the Condiction proper could only be brought for the possession of property: and the reason is obvious, the simple Condiction is for what is lent; and property alone, not rights, can be the matter of a loan; whereas rights, equally with the possession of property, can be parted with in mistake.

So far, all the condictions have arisen one out of the other, through a simple connection of ideas; but two still remain which are anomalous. These are the condictio furtiva and the condictio ex lege.

(H). The condictio furtiva, more properly designated condictio ex causa furtiva, was introduced "odio furum" (Gai. 4. 4), in derogation of strict principle. A condiction is properly an action to supply the want of a vindication, which is required by justice, but impossible in fact. If, then, a thief is in possession of a stolen article, seeing that vindication is possible, there ought logically to be no condiction. If the article has been alienated or consumed, a condictio sine causa is possible. But it is so difficult to know whether a stolen article has or has not been alienated or consumed, that in the particularly heinous case of theft a condictio furtiva is allowed, without regard to the question of a vindicatio being possible or impossible: and this condictio can be brought even against the wrongful possessors of immoveable property, which, being by nature indestructible, is always the proper subject for a vindication. D. 47. 8. 2. 26: D. 12. 3. 1. I.

It is clear that this action arises not on the delict (the foundation of the actio furti), but on a quasi-contract inseparable from a delict, viz. on the duty to restore, which is incumbent on any man who wrongfully enriches himself at another's expense.

(I.) Lastly, another anomalous condiction, the condictio ex lege, was allowed by a standing rule of Roman Jurisprudence, when a nova lex (which some understand to mean a lex passed

at a later date than the XII. Tables, but Savigny, more reasonably, to mean one passed after the Lex Aebutia had established the formulary system) provided a remedy, but said nothing about the procedure to enforce it. The remedy then was a condictio ex lege; a condiction, that is to say, and not a bona fide action; and a condiction falling under none of the classes hitherto mentioned, but bearing the name of the lex which it is employed to enforce'.

To sum up our results :-the proper foundations of a condiction are seen to be

(1) the benefit of one man's property at the expense of that of another without lawful cause and

(2) the inapplicability of the remedy by vindicatio.

The benefit of one man's property at the expense of the other's may either arise from

(a) express engagement unfulfilled,

(i) the engagement being in consideration of an actual benefit (A, B, above);

(ii) the engagement being upon the fiction of a benefit (E, above);

(b) fictitious engagement, coupled with actual benefit (F, above);

(c) error, fraud or violence (G, above);

(d) consumption or alienation,

(i) following on lawful detention, i.e. detention taken with the consent of the owner or through error, the consumption or alienation being either erroneous or fraudulent (C, D, above);

(ii) following on unlawful detention, i.e. detention taken through fraud or violence, the consumption or alienation therefore being also fraudulent (G, above).

The improper foundations of condiction are

(e) theft, i.e. theft without consumption (H, above);

1 If a lex provided neither procedure nor remedy, it was imperfecta, i.e. practically a dead letter.

Hence Roman Law and English herein differ. See Austin's Jurisp. Lect. 1. p. 101, Campbell's Edition.