Condictio

The condictio ( Latin for reclamation ) is a Roman law suit for unjust enrichment . It generally offers the possibility of reclaiming what has been wrongly obtained from the enriched. The term “condition” has established itself.

The German enrichment law of § § 812 ff. BGB is based on the condictio .

origin

The condictio arose in the legal system of the early Roman loan business, the mutuum . Not every shift of assets provisionally permitted by the legal system should finally come into effect, which is why a loan granted granted claims for repayment. The recovery claims should be actionable if necessary.

The ancient Roman Legis actio per condictionem was originally used to enforce a condictio from loans or from stipulation or litteral contract . It was structured according to strict law and required the adequacy of donation and reclaim. For this reason, the condictio was always directed towards a certain sum ( certam pecuniam dari ) or what was “obtained” for a certain thing ( aliam certam rem dari ). The complaint in the form process introduced later was characterized by the fact that the reason for the obligation was only described abstractly ( Si paret oportere = if the latter is obliged ). It was therefore suitable for application to a large number of liability cases. The procedural formula was later extended to include the condictio incerti in cases in which what the plaintiff was demanding could not be clearly described.

Individual conditions

Depending on the reason for the enrichment, Roman law differentiates between different conditions:

• condictio cautionis
• condictio certae pecuniae
• condictio certae rei
• condictio certi
• condictio ex paenitentia
• condictio (ex causa) furtiva
• condictio indebiti
• condictio liberationis
• condictio possessionis
• condictio sine causa
• condictio triticaria
• condictio ob turpem vel iniustam causam

In addition, other so-called post - classical conditions have developed:

• condictio ex lege
• General condition
• condictio incerti
• condictio ob causam finite
• condictio ob causam futuram
• condictio ob rem (also condictio causa data causa non secuta or condictio ob causam datorum )
• condictio ringeni

Conditions and right to enrichment

The modern right to enrichment has developed from the system of condictiones, but shows differences in comparison to those. According to Roman law, the "certa res" can always be demanded, while today's German enrichment law allows the objection that the debtor is no longer in possession of the enrichment (so-called depletion , cf. § 818 Paragraph 3 BGB and Art. 62 OR ) .

Individual evidence

1. ^ Heinrich Honsell : Roman law. 5th edition, Springer, Zurich 2001, ISBN 3-540-42455-5 , p. 159 f.
2. ^ Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , pp. 270–275.