« PreviousContinue »
DIGEST XII. I. AND IV.-VII.
DIGEST XIII. 1.-111.
TRANSLATED AND ANNOTATED BY
BRYAN WALKER, M.A., LL.D.,
LAW LECTURER OF ST JOHN'S COLLEGE, CAMBRIDGE;
The definition of a Condiction given by Gaius stands thus : "appellantur in personam actiones, quibus dare fierive oportere intendimus, condictiones,” and this is repeated, with the substitution of facere for fieri, by Justinian'. This dictum, on its face, might either imply that “condiction” and “personal action" are convertible terms, the distinguishing mark of each or either being that it is brought to enforce a claim, “dare fierive oportere ;” or might imply that "condictions” are a particular subdivision or class of personal actions, viz. those wherein we enforce a claim “dare fierive oportere,” other claims being possible, and enforceable by other forms of personal action. We find on investigation that the latter is the sense really intended®; for there are personal actions wherein we claim neither "dare" nor "fieri," delict-actions, for instance, where we plead “ damnum decidere oportere adversarium ;" whilst in personal actions on contract there are the two opposed subdivisions of actiones stricti juris and actiones bonae fidei, in the first of which the plaintiff's intentio (under the formulary system) ran“ si paret N. Negidium centum (vel hominem) dare oportere,” or “quidquid N. Negidium dare facere oportet,” whilst in the second the qualifying words ex bona fide were added, “ quidquid N. Negidium dare facere oportet ex fide bona." Hence, it is clear that by Condictio Gaius and Justinian intend a personal action that is (1) stricti juris, (2) on a contract or a quasi-contract; and i Gai. Comm. 4. 5: Just. Inst. 4. pears to have been mutilated by the
compilers of the Digest, and does not ? Ulpian seems to say the contrary
harmonize with other statements of in D. 44. 7. 25, but the passage ap- Ulpian.