Exceptio non numeratae pecuniae
The exceptio non numeratae pecuniae (defense of failure to pay out) was a special case and sub- case of the Roman legal defense of abuse of rights, the exceptio doli . With it, the debtor turned against the claim of the creditor for repayment of a loan claim that had never actually been paid.
In this case, the debtor had a fundamental problem because the exceptio doli failed to do its job. It required him to provide evidence of his claim that he had not received the loan value. He regularly failed to provide this evidence, particularly in the widespread verbal contractual legal transactions of stipulation (obligatio verbis contracta) . The key feature of such types of contract was that they were based on formal verbality and were not backed up by means of written evidence . During the classical period the understanding of a fundamental need for protection of the borrower grew. The then newly created exceptio non numeratae pecuniae enabled the debtor to protect himself more effectively against unjustified claims from the repayment promise. The special mechanism of this type of objection was an implemented reversal of the burden of proof ; now the creditor had to prove that he had issued the loan value, which he now regularly failed.
The objection was initially limited to one year, under Diocletian to five years and under Justinian to two years. In this respect, the debtor's need for legal protection was dependent on the fact that the action was not brought after the deadline. In order to close the legal loophole, the debtor was granted a right of initiative to bring about the failure to pay out by means of a legal challenge (querela non numeratae pecuniae) . Under Justinian, a written protest from the debtor was ultimately sufficient.
The exceptio is reminiscent of the objection to enrichment of modern bill of exchange law .
literature
- Jan Dirk Harke : Roman law. From the classical period to the modern codifications (= outline of the law. ). Beck, Munich 2008, ISBN 978-3-406-57405-4 , § 10 no. 4, 8.
- Heinrich Honsell : Roman law. 5th, supplemented edition. Springer, Berlin et al. 2001, ISBN 3-540-42455-5 , pp. 84 and 117.
Remarks
- ↑ a b Jan Dirk Harke : Roman law. From the classical period to the modern codifications (= outline of the law. ). Beck, Munich 2008, ISBN 978-3-406-57405-4 , § 10 no. 4th
- ↑ CJ 4.30.3.
- ^ Herbert Hausmaninger , Walter Selb : Roman private law (= Böhlau study books. Fundamentals of studies. ). Böhlau, Vienna et al. 1981, ISBN 3-205-07171-9 , p. 211.
- ↑ CJ 4.30.14.4.
- ^ Heinrich Honsell : Roman law. 5th, supplemented edition. Springer, Berlin et al. 2001, ISBN 3-540-42455-5 , p. 84.
