Datio ob rem and datio ob causam – the purpose of performance in Roman law

2021 ◽  
pp. 1-23
Author(s):  
Marek Sobczyk
Keyword(s):  
Roman Law ◽  
Mutual Relationship ◽  
Crucial Issue ◽  
Secondary Literature ◽  
Unjustified Enrichment

Summary This paper deals with one of the most important unjustified enrichment claims in Roman law, the condictio causa data causa non secuta concentrating on the crucial issue of the purpose of performance. In Roman law the purpose of performance was denoted by the term res as a part of datio ob rem (giving for a purpose) or causa as a part of datio ob causam (giving on a basis); however, in the secondary literature there is a dispute over the exact meaning of those terms and their mutual relationship. Some scholars identify res with the counter-performance which was expected from the recipient. Others consider this interpretation of res as too narrow, because datio ob rem was applied not only where the giver expected counter-performance but also when he tried to achieve other goals, including that not associated with the recipient’s behaviour at all. In order to find a solution to that long-lasting dispute the article analyses typical examples of cases described in the sources as datio ob rem or datio ob causam.

Historic analogs of civil confiscation of unexplained wealth – the case of Bulgaria

2020 ◽  
Vol 27 (2) ◽  
pp. 561-571
Author(s):  
Todor Kolarov
Keyword(s):  
Theoretical Basis ◽  
Design Methodology ◽  
Roman Law ◽  
Private Law ◽  
Public And Private ◽  
Content Type ◽  
Civil Proceedings ◽  
Unjustified Enrichment ◽  
The Right

Purpose Using Bulgarian legislation on civil confiscation and analysing the nature of the substantive authority to confiscate unexplained wealth, as well as evaluating research in common and continental law, this paper aims to seek historic parallels for non-punitive civil confiscation of unexplained wealth. Design/methodology/approach The design of this paper is centred on determining whether the substantive authority of the state to confiscate unexplained wealth has a Roman law equivalent. Conducting a review of key elements of the substantive authority for the action in Bulgaria, the research examines the validity of the hypothesis that the right to confiscate has a Roman law equivalent. Findings The research supports the position that the substantive authority to seek civil confiscation relief in Bulgaria has its origin in the overarching principle of unjustified enrichment in Roman law. Considering needed adjustments related to the developed demarcation between public and private law in contemporary law, the action to confiscate unexplained wealth in civil proceedings in the case study jurisdiction has its equivalent in the Roman condictio furtiva. Originality/value This paper sheds light on the theoretical basis for civil asset confiscation of unexplained wealth in one continental law jurisdiction, thus contributing to the on-going debate on the compatibility of civil confiscation of unexplained wealth with the continental law tradition.

A Casebook on the Roman Law of Contracts

2021 ◽  
Author(s):  
Bruce W. Frier
Keyword(s):  
Roman Law ◽  
Private Law ◽  
Legal Thinking ◽  
The Law ◽  
Unjustified Enrichment ◽  
Digest Of Justinian

This Casebook explores the writings of Roman lawyers on the law of contracts, a rich and hugely influential area of Roman private law. The 235 “Cases” are actual texts deriving, for the most part, from the Digest of Justinian (535 ce), but written hundreds of years earlier during the Classical era of Roman law. These Cases give a fairly complete view of the concepts and methods used to create rules and judge contract cases in Roman courts. The Casebook concentrates especially on two central Roman contracts, stipulation and sale; but all other contracts and contract-related issues are discussed, as well as Roman legal thinking on unjustified enrichment.

scholarly journals POJĘCIE ‘CAUSA’ W ŹRÓDŁACH PRAWA RZYMSKIEGO ODNOSZĄCYCH SIĘ DO BEZPODSTAWNEGO WZBOGACENIA

2016 ◽  
Vol 11 (1) ◽  
pp. 269
Author(s):  
Marek Sobczyk
Keyword(s):  
Roman Law ◽  
Legal Basis ◽  
Central Concept ◽  
Unjust Enrichment ◽  
Unjustified Enrichment ◽  
The Way

THE CONCEPT OF ‘CAUSA’ IN THE SOURCES OF ROMAN LAW RELATED TO UNJUSTIFIED ENRICHMENT Summary In this paper I analyze the meaning of causa in the sources of Roman law in fourth, fifth, sixth and seventh title of the twelfth book of Digest’s. The aim of my study is to participate in the contemporary discussion on several crucial issues of Roman conception of unjustified enrichment. In my opinion research into the concept of causa can contribute to the better evaluation of the theories on causa condictionis, causa dandi, causa retinendi, the theory that datio sine causa was the central concept of Roman unjustified enrichment, as well as the theory that datio was a basic precondition of the application of condictio. I come to a general conclusion that causa had several different meanings: a) causa as an qualification of the fact that a benefit is in the hands of another person; b) causa which related to the legal basis of acquisition of a benefit; c) causa which related to the way in which a benefit was acquired; d) causa as a motive or an objective of the performance; e) causa which related to the basis of a promise of performance; f) causa which justified the retention of a benefit. Neither of the abovementioned meanings of causa corresponds to the causa condictionis understood in the abstract way as a ground for claims common to all condictiones, a common idea of the remedy for the recovery of an unjust enrichment. Only the last meaning related to the conception of causa retinendi. The theory that datio sine causa was the central concept of Roman does not seems to be justified.

Unjustified enrichment and statute: Pert v McCaffery

2020 ◽  
Vol 24 (3) ◽  
pp. 400-404
Author(s):  
Mat Campbell
Keyword(s):  
Unjustified Enrichment

“Farewell to Unjustified Enrichment?” – A Common Law Response

2016 ◽  
Vol 20 (3) ◽  
pp. 326-337
Author(s):  
Steve Hedley
Keyword(s):  
Common Law ◽  
German Law ◽  
Unjust Enrichment ◽  
Level Of Abstraction ◽  
The Law ◽  
Unjustified Enrichment ◽  
High Level ◽  
Logical Process

In this article, Professor Steve Hedley offers a Common Law response to he recently published arguments of Professor Nils Jansen on the German law of unjustified enrichment (as to which, see Jansen, “Farewell to Unjustified Enrichment” (2016) 20 EdinLR 123). The author takes the view that Jansen's paper provided a welcome opportunity to reconsider not merely what unjust enrichment can logically be, but what it is for. He argues that unjust enrichment talk contributes little of value, and that the supposedly logical process of stating it at a high level of abstraction, and then seeking to deduce the law from that abstraction, merely distracts lawyers from the equities of the cases they consider.

Without the Power to Drink or Contract

2020 ◽  
Vol 24 (1) ◽  
pp. 26-48
Author(s):  
Warren Swain
Keyword(s):  
Alcohol Consumption ◽  
Social Activity ◽  
Individual Responsibility ◽  
Roman Law ◽  
Current Position ◽  
Modern Times ◽  
The Will ◽  
The Subject ◽  
The Law ◽  
Over Time

Intoxication as a ground to set aside a contract is not something that has proved to be easy for the law to regulate. This is perhaps not very surprising. Intoxication is a temporary condition of varying degrees of magnitude. Its presence does however raise questions of contractual autonomy and individual responsibility. Alcohol consumption is a common social activity and perceptions of intoxication and especially alcoholism have changed over time. Roman law is surprisingly quiet on the subject. In modern times the rules about intoxicated contracting in Scottish and English law is very similar. Rather more interestingly the law in these two jurisdictions has reached the current position in slightly different ways. This history can be traced through English Equity, the works of the Scottish Institutional writers, the rise of the Will Theory, and all leavened with a dose of judicial pragmatism.

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