One mark of a mature legal system is that it is conscious of its own traditions: to fully understand the notion of solutio indebiti in the contemporary legal systems we need to understand the historical and the institutional background from which the condictio indebiti came. In this respect, the action to which that name was applied in Roman law is based on principles which afford scope for interesting analysis. In the Roman World, where one, by mistake, makes payment of what is not due, he may in certain circumstances recover it by an action. Whether money paid under an error in law can be recovered by a condictio indebiti is a question which has given rise to much controversy. The constitution of Diocletian and Maximian seems to deny restitution where the money has been paid under an error in law: in C. 1.18.10 it is explicitly stated that «cum quis ius ignorans indebitam pecuniam persolverit, cessat repetitio. Per ignorantiam enim facti tantum repetitionem indebiti soluti competere tibi notum est». Referring to this constitution and other texts, many eminent jurists, such as Cujas, Donellus, and Voet, maintain that no action lies to recover money paid by mistake in point of law. Other authors, among whom we find Vinnius and D’Aguesseau, are of the opinion that restitution may be obtained in all cases of error, whether it be an error of fact or an error of law. They contend that in the whole title of the Digest which concerns the condictio indebiti, restitution is never confined solely to an error in fact, or denied to an error in law, but is constantly ascribed simply to error, whether the payment was made on account of what was never due, or of some claim which could not be enforced by reason of a perpetual exception. The aim of this paper is to investigate the Romanist roots of the solvens’ mistake importance for the purposes of restitution remedy in case of undue payment. I will therefore analyze the Roman jurisconsults’ position and the interpretative tradition of the ius commune, which are the basis of all civil law systems. The second part of my essay will instead be focused on a basic examination of the solutio per errorem in the Italian, English, German and French legal systems, so as to highlight the considerable similarities of the legal solutions adopted in those different systems.
Galeotti, S. (2020). «Solutio per errorem». The Significance of the Solvens’ Mistake in the Context of the Condictio Indebiti. ROMA TRE LAW REVIEW(1), 105-125.
«Solutio per errorem». The Significance of the Solvens’ Mistake in the Context of the Condictio Indebiti
Galeotti Sara
2020-01-01
Abstract
One mark of a mature legal system is that it is conscious of its own traditions: to fully understand the notion of solutio indebiti in the contemporary legal systems we need to understand the historical and the institutional background from which the condictio indebiti came. In this respect, the action to which that name was applied in Roman law is based on principles which afford scope for interesting analysis. In the Roman World, where one, by mistake, makes payment of what is not due, he may in certain circumstances recover it by an action. Whether money paid under an error in law can be recovered by a condictio indebiti is a question which has given rise to much controversy. The constitution of Diocletian and Maximian seems to deny restitution where the money has been paid under an error in law: in C. 1.18.10 it is explicitly stated that «cum quis ius ignorans indebitam pecuniam persolverit, cessat repetitio. Per ignorantiam enim facti tantum repetitionem indebiti soluti competere tibi notum est». Referring to this constitution and other texts, many eminent jurists, such as Cujas, Donellus, and Voet, maintain that no action lies to recover money paid by mistake in point of law. Other authors, among whom we find Vinnius and D’Aguesseau, are of the opinion that restitution may be obtained in all cases of error, whether it be an error of fact or an error of law. They contend that in the whole title of the Digest which concerns the condictio indebiti, restitution is never confined solely to an error in fact, or denied to an error in law, but is constantly ascribed simply to error, whether the payment was made on account of what was never due, or of some claim which could not be enforced by reason of a perpetual exception. The aim of this paper is to investigate the Romanist roots of the solvens’ mistake importance for the purposes of restitution remedy in case of undue payment. I will therefore analyze the Roman jurisconsults’ position and the interpretative tradition of the ius commune, which are the basis of all civil law systems. The second part of my essay will instead be focused on a basic examination of the solutio per errorem in the Italian, English, German and French legal systems, so as to highlight the considerable similarities of the legal solutions adopted in those different systems.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
