Gai. Nihil autem interest, cum societate an sine societate res inter aliquos communis sit : nam utroque casu locus est communi dividundo iudicio.-1. 2 pr. eod.' Ulp. Communiter autem res agi potest etiam citra societatem, ut puta cum non affectione societatis incidimus in communionem ut evenit in re duobus legata, item si a duobus simul empta res sit, aut si hereditas vel donatio communiter nobis obvenit.-D. 17, 2, 31.2 Id. In communi dividundo iudicio nihil pervenit ultra divisionem rerum ipsarum quae communes sint, et si quid in his damni datum factumve est, sive quid eo nomine aut abest alicui sociorum aut ad eum pervenit ex re communi.-1. 3 pr., h. t.3 Furthermore, to these belongs the obligation, arising by entry upon the inheritance, between the heir and legatee for discharge of the bequest." BOOK III. Pt. I. Ch. II. a § 183. Heres quoque qui legatum debet, neque ex contractu neque ex maleficio obligatus esse intelligitur: nam neque cum defuncto neque cum herede contraxisse quidquam legatarius intelli relates more to reciprocal personal performances than to the division of things owned in common. 1 Now it makes no difference whether it is with or without partnership that a thing is common property between several people; for in both cases the action obtains for division of common property. 2 But a matter can be transacted in community even without a partnership, for example, when without intending partnership we lapse into community, as happens when a thing is bequeathed to two persons, and if a thing has at the same time been bought by two, or if an inheritance or a donation devolves upon us in common. 3 In the action for the division of common property nothing comes into account besides the division of things themselves which are common, even if an injury has been inflicted or done to them, or anything is in this respect lacking to one of the coowners, or has come to him from common property. BOOK III. Pt. 1. Ch. II. gitur; maleficium autem nullum in ea re esse plus quam manifestum est.-D. 44, 7, 5, 2.1 Finally, there is a series of cases in which from the performance rendered by some one, without agreement a re contracta? between giver and receiver, an obligatio, grounded upon aequitas, arises for restitution of the thing received, the general ground of which is illegal command of a thing (unjustifiable enrichment): condictiones sine Cf. D. 12, 6. causa,' in the wider sense." 65, 2. Pomp. ad Q. Muc.: Damus aut ob causam aut ob rem: ob causam praeteritam, veluti cum ideo do, quod aliquid a te consecutus sum vel quia aliquid a te factum est, ut etiamsi falsa causa sit, repetitio eius pecuniae non sit; ob rem vero datur, ut aliquid sequatur, quo non sequente repetitio competit.-1. 52, D. de cond. indeb. 12, 6.3 Ulp. Perpetuo Sabinus probavit veterum opinionem existimantium, id quod ex iniusta causa apud aliquem sit posse condici.—D. 12, 5, 6,3 : Pap. Haec condictio ex bono et aequo introducta, quod alterius apud alterum sine causa deprehenditur, revocare consuevit.-1. 66, de cond. ind.* 1 An heir also who has to discharge a legacy is considered to be liable neither upon contract, nor tort, for the legatee is not deemed to have made any contract, either with the deceased or with the heir; but that there is no tort in this is more than clear. 2 We make a grant either because of a consideration or because of a thing: for a past consideration, as when I make a grant because I have obtained something from you, or because something has been done by you, so that even if it be a false consideration there is no recovery of such money; but because of a thing, in order that something should follow, and if it does not follow, recovery is available. 3 Sab. has constantly approved the opinion of the old jurists, who thought that what was in some one's hands upon an unlawful title could be sued for by a personal action. This condictio, introduced by reference to what is right and fair, has usually served for the recovery of property of one person found in the hands of another not entitled to it. Pomp. Iure naturae aequum est, neminem cum alterius detrimento et iniuria fieri locupletiorem.-D. 50, 17, 206.1 BOOK III. Pt. I. Ch. Ir. He that in the mistaken acceptance of a legal liability renders a performance not even naturally due" has the a§ 114 'condictio indebiti ' against the receiver, for restitution See Bell, of the thing received. b Gai. iii. § 91: Is quoque qui non debitum accepit ab eo, qui per errorem solvit, re obligatur: nam proinde ei condici potest 'SI PARET EVM DARE OPORTERE,' ac si mutuum accepisset. . . . Sed haec species non videtur ex contractu consistere, quia is, qui solvendi animo dat, magis distrahere vult negotium quam contrahere." Paul. Indebitum est non tantum, quod omnino non debetur, sed et quod alii debetur si alii solvatur, aut si id quod alius debebat, alius quasi ipse debeat solvat.-D. 12, 6, 65, 9.3 ... Pomp.: si heredem se . . . falso existimans Paul. Cuius per errorem dati repetitio est, According to the Law of Nature, it is fair that no one become richer with loss to another, and by wrong. 2 He also who receives what is not due to him from one paying in mistake is bound by the thing. For he can be sued by the personal action: If it appear that he ought to give,' just as if he had received a loan. . . . But this sort of obligation does not appear to arise from contract, since he who gives with the thought of making payment, wishes rather to dissolve a contract than to enter into one. Indebitum is not only what is altogether not owing, but also a debt to another if that other is paid, or if what one person owed is paid by another as if he himself were the debtor. if he, falsely supposing himself to be heir, shall pay a creditor of the inheritance, . . . the real heir is not discharged, and the former will be able to recover what he paid. In the case in which there would be recovery of a thing given in error a donation exists, if it has been given advisedly. S. VV. BOOK III. Pt. 1. Ch. II. Imp. Diocl. Ea, quae per infitiationem in lite crescunt, ab ignorante etiam indebita soluta repeti non posse certissimi iuris est.-C. 4, 5, 4.' The performance which is rendered in expectation of a counter-performance" or other causa futura' (i.e., in the supposition of a future circumstance that forms the legal ground of performance), if this do not come about, can be recalled by the 'condictio ob causam D. 12, 6, 52, datorum s. causa data non secuta.'' a § 126. supra. Paul. Ob rem honestam datum ita repeti potest, si res propter quam datum est, secuta non est.-D. 12, 5, 1, 1.7 Quod ob rem datur, ex bono et aequo habet repetitionem, veluti si tibi dem, ut aliquid facias, nec feceris.-1. 65, cit. § 4. Iul. Fundus dotis nomine traditus, si nuptiae insecutae non fuerint, condictione repeti potest. -D. 12, 4, 7, 1. Ulp. Sed etsi ob causam promisit, causa tamen secuta non est, dicendum est condictionem locum habere.-D. 12, 7, I, I. Imp. Alex. Si quasi accepturi mutuam pecuniam adversario cavistis, quae numerata non est, per condictionem obligationem repetere . . . potestis.-C. 4, 30, 7.o 1 That sums which accumulate in a suit through disclaimer, and though not owing, have been paid out of ignorance, cannot be recovered, is incontestable law. 2 That which was given in consideration of an honourable thing can be recovered, provided the thing on account of which it was given has not followed. 3 That which was given because of a thing admits of recovery by virtue of what is right and fair, as, if I make a conveyance to you in consideration of a performance by you, and you shall be in default. * An estate delivered by way of dowry can be recovered by a personal action, if the marriage shall not have followed. But although he made the promise because of a consideration, but the consideration has not followed, we must say that a personal action obtains. 6 If you as about to receive a loan have given security to your If the legal ground (legal purpose) of the performance is for the receiver (and indeed for him alone) an immoral one, the 'condictio ob turpem causam' obtains. Quodsi turpis causa accipientis fuerit, etiamsi res secuta sit, repeti potest.-Ut puta dedi tibi, ne sacrilegium facias, ne furtum, ne hominem occidas. Item si tibi dedero, ut rem mihi reddas depositam apud te,-si tibi dedero, ne mihi iniuriam facias.-D. 12, 5, 1, 2 (Paul.), 1. 2 pr., §§ 1, 2 (Ulp.).' : Paul. Ubi autem et dantis et accipientis turpitudo versatur, non posse repeti dicimus, veluti si pecunia datur, ut male iudicetur.— 1. 3 eod.2 Pap. Dixi, cum ob turpem causam dantis et accipientis pecunia numeretur, cessare condictionem et in delicto pari potiorem esse possessorem.-D. 12, 7, 5 pr. § 136. OBLIGATIONES QUASI EX DELICTO." 'Obligationes quasi ex delicto' are such obligations directed to compensation for, or punishment of, injury, opponent, and the money has not been paid over, you can recall the obligation by a condictio. 1 But if the consideration on the part of the receiver shall be immoral, even if the thing has followed, it can be recalled. For example, I have made a grant to you, in consideration of your committing no sacrilege, no theft, killing no man. . . . The like if I have made a grant to you in consideration of your rendering to me a thing deposited with you,-if I shall make a grant to you in consideration of your doing me no injury. But where infamous conduct occurs on the part of both giver and receiver, we maintain that there is no possible recovery; for example, if money is paid in consideration of a bad judgment being given. 3 I have said that since the money was paid because of a consideration disgraceful for both giver and receiver, the condictio falls through, and in an equal wrong the possessor is the more favoured. BOOK III. Pt. I. Ch. 11. a See Ortolan, 'Instituts,' ii. PP. 449, 89q. |