Condictio indebiti
The condictio indebiti ( performance on a non-existent debt ) is a type of performance condition from the right to enrichment . It is regulated in § 812 Paragraph 1 Clause 1 Alternative 1 BGB (Germany) or § 1431 ABGB (Austria) and Article 62 Paragraph 2 and Article 63 OR (Switzerland).
A condictio indebiti exists if the service was provided, but there was never a legal reason for the service, and the recipient of the service was therefore not entitled to the service. It may be that the legal reason did not exist from the start (for example, an immoral contract) or that it later ceased to apply to the past ( ex tunc ), for example due to a challenge (in Roman law, the special application of the condictiones , the condictio ob causam finitam ). The offense also includes services due to errors ( indebitum solutum ).
A condictio indebiti occurs very frequently in the accounts receivable of credit institutions, in that incorrect interest rates are set in the accounts receivable. The enrichment resulting from the payment of the claim (through the overcharged interest) regularly leads to a reimbursement of the credit institutions towards the debtor. Since the enrichment was immoral , the statute of limitations is also regularly suspended.
Other types of action under Roman law that can be assigned to the performance conditions were the condictio ob turpem vel iniustam causam , in which the performance pursued a moral or illegal purpose. It finds its counterpart in today's § 817 BGB. The condictio ob rem is now regulated in § 812 paragraph 1 sentence 2 alternative 2 BGB and also covers the condictio causa data causa non secuta or condictio ob causam datorum , for the reversal of services that were not intended. The condictio possessionis, in turn, is a Roman legal sub-case of the condictio indebiti and today no longer has any direct equivalent in German law on enrichment.
literature
- Jan Dirk Harke : Roman law. From the classical period to the modern codifications . Beck, Munich 2008, ISBN 978-3-406-57405-4 ( floor plans of the law ), § 11 no. 32 (p. 193 f.).
- Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , pp. 271 f.
Web links
- § 812 BGB at juris
- § 1431 ABGB in the legal information system of the Republic of Austria (RIS)
- Art. 62 and Art. 62 Swiss Code of Obligations on the information page of the Swiss federal authorities
Individual evidence
- ^ Jan Dirk Harke : Roman law. From the classical period to the modern codifications . Beck, Munich 2008, ISBN 978-3-406-57405-4 ( floor plans of the law ), § 11 no. 32 (p. 193 f.).
- ^ Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , p. 271 f.
