1Ulpianus, On the Edict, Book XXVI. Now let us consider the case of money which was paid without being due. 1And, indeed, if anyone ignorantly pays what is not due, he can recover the same by means of this action; but if he paid it being aware that he did not owe it, an action for its recovery will not lie.

2The Same, On Sabinus, Book XV. Where anyone pays with the understanding that if it should appear that the money was not due, or that the Lex Falcidia is applicable, it shall be returned; an action for recovery will be available, for an agreement has been made between the parties. 1Where anything is paid in compliance with the terms of a will, but the will afterwards proves to be forged, or inofficious, or invalid, or should be set aside, it can be recovered; and if, after a long time, a debt should come to light, or codicils which have been long concealed should be produced, which contain a revocation of legacies already paid, or the legacies are diminished because bequests have been left to others; the same rule applies. This is the case because the Divine Hadrian stated in a Rescript that where an inofficious or forged will exists, an action should be granted the party in whose favor a decision was rendered with reference to the estate.

3Papinianus, Questions, Book XXVIII. The same course should be pursued where, after the legacies are paid, some new or unexpected event transfers the estate to others; for example, where a posthumous child is born whom the heir did not know was in its mother’s womb, or where a son who was in the hands of the enemy and whom his father erroneously thought to be dead, returns; for the Emperor Titius Antoninus stated in a Rescript that a prætorian action should be granted to a posthumous son or to one to whom the estate had been awarded against the parties who had received legacies, because a possessor in good faith is liable for the amount by which he became more wealthy, and the risk of claims of this kind does not attach to a party who makes payment without being guilty of negligence.

4Paulus, On Sabinus, Book III. The Divine Hadrian stated in a Rescript that the same rule would apply if another will should be produced.

5Ulpianus, On Sabinus, Book XVI. It is no new doctrine that, where one party pays, another can bring an action to recover the money; for where a minor under twenty-five years of age, without proper consideration, enters upon an estate, and obtains complete restitution after the legacies have been paid; then, as set forth in the Rescript to Arrius Titianus, the right of action for recovery does not belong to him, but to the party entitled to the property of the estate.

6Paulus, On Sabinus, Book III. If your agent pays a debt which was not due, and you do not ratify his act, then, as Labeo states in the Books styled “Last Works,” an action can be brought to recover the money, but if it was due, Celsus says it cannot be recovered; because where anyone appoints an agent to transact his business, it is held that he also directs him to pay his creditor; and it is not necessary afterwards to wait for him to ratify his acts. 1Labeo also says that if money which is not due is paid to an agent and his principal does not ratify his act, suit can be brought to recover it. 2Celsus says that anyone who pays a debt to an agent is immediately released, and no ratification should be considered; but where the agent receives what is not due, then ratification is required, because he would be held not to have directed that anything should be done with reference to the collection of this claim, and therefore, if his act is not ratified, suit must be brought against the agent for its recovery. 3Ad Dig. 12,6,6,3ROHGE, Bd. 22 (1878), Nr. 66, S. 299: Cond. possessionis gegen den aus Irrthum Besitzenden. Besitz ein Vermögensobject.Julianus says that neither a guardian nor an agent can bring an action for the recovery of money after they have paid it; and that it makes no difference whether they paid out their own money or that of the ward or principal.

7Pomponius, On Sabinus, Book IX. Where money which is not due is paid through mistake, suit may be brought for the recovery of the same money, or of an equal amount.

8Paulus, On Sabinus, Book VI. Where a third party pays a wife on account of a husband who is insolvent, he cannot bring suit to recover the money, since it is, to all intents and purposes, a debt due to the wife.

9Ulpianus, On the Edict, Book LXVI. For even if a husband, when he is absolutely unable to pay his debts, gives his wife the dowry, he is in such a position that he cannot bring an action to recover it.

10Paulus, On Sabinus, Book VII. He who has undertaken to pay a debt on a certain day is a debtor to such an extent that, if he pays the debt before the prescribed time, he cannot bring an action to recover the money.

11Ulpianus, On Sabinus, Book XXXV. If a party against whom an action De peculio is brought should, through carelessness, pay more than there is in the peculium, he cannot bring an action to recover it.

12Paulus, On Sabinus, Book VII. If I give you an usufruct in my land, thinking erroneously that I owe it to you, and I should die before bringing an action for its recovery, the right to bring the action will pass to my heirs.

13The Same, On Sabinus, Book X. Even a slave may be bound by a natural obligation; hence, if anyone should pay a debt for him, or the slave himself should do so after being manumitted (as Pomponius says), he cannot recover the money out of the peculium the free administration of which he enjoys; and on this account a surety who had been accepted for the slave will be liable, and a pledge given on his account will be retained; if, however, the slave who has the administration of his peculium gives anything as a pledge for what he owes, he should be granted a prætorian action to recover it. 1Moreover, where a ward borrows money without the authority of his guardian, becoming more wealthy thereby, and pays the same after he reaches puberty, he cannot bring an action for its recovery:

14Pomponius, On Sabinus, Book XXI. For it is only in accordance with natural equity that no one should profit pecuniarily by the injury of another.

15Paulus, On Sabinus, Book X. The right to recover anything which was not due is based upon natural law, and therefore the action will include any addition to the property, for instance, a child born of a female slave, or any land added by alluvium; and, indeed, it also includes crops gathered in good faith by the party to whom delivery was made. 1Ad Dig. 12,6,15,1ROHGE, Bd. 22 (1878), Nr. 66, S. 299: Cond. possessionis gegen den aus Irrthum Besitzenden. Besitz ein Vermögensobject.Moreover, where money belonging to another person was paid, an action will lie in order to obtain possession of the same; just as if I, laboring under a false impression, should deliver possession of certain property to you thinking that I was obliged to do so, I could bring suit for its recovery. But if I should have made the possession yours, so that you could not be deprived of the property on the ground of prescription, even then I could properly bring an action against you for the recovery of money which had been paid without being due. 2Even if an usufruct in the property delivered belongs to another, I could bring suit against you for recovery leaving out the usufruct.

16Pomponius, On Sabinus, Book XV. Where a debt dependent upon a condition is paid by mistake, then, so long as the condition is pending, suit can be brought for its recovery; but if the condition has taken place, an action cannot be brought for it. 1But where something is to be delivered at an uncertain time, it cannot be recovered after that time has elapsed.

17Ulpianus, On the Edict, Book II. For, if I promise to give something when I die, and I give it before that time, Celsus says that I am not entitled to an action for its recovery; and this opinion is correct.

18The Same, On Sabinus, Book XLVII. Where anything is owing upon a condition which must inevitably take place, it cannot be recovered by an action after it has been delivered; although if it had to be given under another condition whose fulfillment was uncertain, an action could be brought for its recovery, even if it had been previously delivered.

19Pomponius, On Sabinus, Book XXII. Ad Dig. 12,6,19 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 123, Note 3.Where a debtor is released from liability by way of inflicting a penalty of the person to whom the debt is due, the natural obligation remains unimpaired; and therefore if the money is paid it cannot be recovered. 1Even though a party may receive payment of a debt, due to him, still, if he who pays gives what he does not owe, there will be a right of action for its recovery; for instance, where anyone erroneously thinks that he is an heir or the possessor of the property of an estate pays a creditor of the same, in this instance, the true heir will not be released, and the party who paid can bring an action for recovery; for although anyone may receive something which is due to him, still, if the party who pays it pays what is not due, an action for its recovery will lie. 2If I am under the false impression that I owe a debt, and I pay it in coin, part of which belongs to another and part of it to me, I can bring an action for half the amount, and not for half of each share. 3If I think that I am obliged to deliver either Stichus or Pamphilus, while in fact I am obliged to deliver Stichus, and I deliver Pamphilus; I can bring an action for property given which was not due; for I cannot be held to have made the delivery in payment of what I owe. 4Where two debtors who owed ten aurei together paid twenty, Celsus says each of them can bring an action for the recovery of five; because since they owed ten, and paid twenty, what both paid over and above what was due both can sue to recover.

20Julianus, Digest, Book X. If a debtor and a surety unite in payment of a debt, they do not, in this instance, differ from two debtors who promise; wherefore, all that has been said with reference to the latter can also be applied to the former.

21Paulus, Questions, Book III. It is evident that where you state that there are two parties bound by the same obligation, not for the payment of the same sum of money but for the performance of some other act; for instance, the delivery of Stichus or Pamphilus, and the two were delivered together—or perhaps a toga, or a thousand denarii—it cannot be said that the same rule applies with respect to an action for recovery, that is that they can bring an action for separate shares; because in the beginning they could not have discharged the obligation in that way. Therefore in this case the creditor has the right to elect to which of the parties he will make the delivery, in order that the other may be prevented from bringing suit.

22Pomponius, On Sabinus, Book XXII. Moreover, if I think that I have promised anything to you or to Titius, while, in fact, no promise was made to either, for Titius was not personally included in the stipulation, and I deliver the article to Titius, I am entitled to an action to recover it from him. 1Where I, through mistake, conveyed a tract of land as free, when I ought to have reserved a right of way; I am entitled to a right of action for the recovery of an uncertain amount, in order that a right of way may be granted me.

23Ulpianus, On Sabinus, Book XLIII. Pomponius submits this nice question, namely: where anyone suspects that a compromise has been effected by a party to whom he is an heir, or by someone of whom he is the agent, and he delivers property in compliance with the terms of the presumed compromise, while in fact none was made; is there ground for an action for recovery? He says that there is, as the delivery of the property was made for a reason erroneously supposed to exist. I think that the same rule applies where the compromise was not completed with reference to the matter on account of which delivery was made, and the same principle will prevail where the compromise is annulled. 1Where a party makes a compromise after a decision is rendered, and pays in compliance with the same, he can bring an action for recovery, because it has been held that the compromise is void; for this the Emperor Antoninus, together with his Divine Father, stated in a Rescript. Nevertheless, whatever has been paid in compliance with the terms of such a compromise can be retained, and credit given for the same in an action brought to enforce the judgment. What then would be the case if an appeal was taken, or if it should be uncertain whether a decision was rendered, or whether it was valid? The better opinion is that the compromise remains in force; for it must be held that there is ground for these rescripts only where the compromise has reference to an absolutely certain decision which can, under no circumstances, be amended. 2Moreover, if payment was made on account of a compromise relative to a provision for maintenance left by will, it is evident that an action can be brought for the recovery of what was paid, because the compromise is annulled by a decree of the Senate. 3If anyone, after having entered into a compromise, nevertheless, has judgment rendered against him; while this is indeed wrongfully done, still the judgment is valid. The party, however, can plead an exception on the ground of fraud against anyone desiring to join issue—where, indeed, he made the compromise before issue was joined—but if this was done afterwards, he can, nevertheless, make use of an exception on the ground of bad faith committed subsequently; for he acts fraudulently who proceeds in spite of a compromise and still demands payment; and hence, if the defendant has judgment rendered against him, he can bring an action for the recovery of whatever he paid in compliance with the compromise. It is certain that he paid it for a consideration, and when anything is paid for a consideration it is not customary for an action to be brought, if the consideration takes place; but, in this instance, it cannot be held that the consideration took place, because the party did not abide by the compromise. Where then the right of action for recovery arises, there is no ground for an exception founded on the compromise, for the suit for recovery and the exception cannot both be operative. 4Where any law prescribes at the beginning that an action for double or quadruple damages will lie; it must be held that suit can be brought for the recovery of money which has been paid under the false impression that this was authorized by the law.

24The Same, On Sabinus, Book XLVI. Where a party who could protect himself by a perpetual exception promises to give something in order to be released, when he knew that he could take advantage of this exception; he cannot bring an action for recovery.

25The Same, On Sabinus, Book XLVII. Where two parties became sureties for a debtor for ten aurei, and the debtor afterwards paid three, and then each of the sureties paid five, it was decided that he who paid last can bring suit for the recovery of three aurei; and this is reasonable, because after three had been paid by the debtor, seven remained due, and when these were paid, three were paid which were not due.

26The Same, On the Edict, Book XXVI. Ad Dig. 12,6,26 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 289, Note 1.Where anyone does not pay the principal but pays interest which is not due, he cannot bring an action for its recovery if the principal on which he paid the interest was due; but if he should pay more than the legal rate, then the Divine Severus stated in a Rescript (which governs the practice of the present time) that he could not bring an action for its recovery, but credit will be given on the principal; and if he afterwards pays the principal, an action can be brought as for the recovery of principal not due. Hence, if the principal should be paid first, any interest above the legal rate which has been collected can be recovered as being principal which was not due. What would be the case if both should be paid at the same time? It can be said that, in this instance also, there would be ground for an action for recovery. 1Interest, however, above twofold the amount of the principal, or compound interest, cannot be inserted in a stipulation or collected, and if paid, it can be recovered by an action; just as interest on future interest can be. 2Where a party, erroneously believing that he owes a certain sum as principal, pays interest upon it; he can bring an action for its recovery and is not held to have knowingly paid what was not due. 3We understand the payment of money which is not due not only to refer to what is not owed at all, but to such as cannot be recovered because of a perpetual exception; wherefore, in this instance also, an action can be brought for its recovery, unless the party who paid it was aware at the time that he was protected by an exception. 4If I owe a hundred aurei, and I transfer a tract of land which is worth two hundred, just as if I was indebted for that amount; Marcellus states, in the Twentieth Book of the Digest, that an action to recover the land will lie, and the stipulation for a hundred aurei will remain in full force; for, although it is established that where property is delivered instead of money it may operate as a release of the obligation, still, if property of greater value is delivered through mistake, on account of a debt, no inseparable union arises between a share in the property and the sum of money, since no one is compelled against his will to accept joint ownership; but a right of action to recover the entire property remains, and the obligation is unimpaired; the land, however, will be retained until the money which is due has been paid. 5Moreover, Marcellus says that where a party who owes money delivers oil of greater value than the debt, as though he owed a larger amount, or if he gives oil as if owing a larger quantity, he can bring an action to recover the excess of the oil, but not all of it; and that, on this account, his obligation is terminated. 6Marcellus also says that, if I am entitled to part of a tract of land, and an appraisement is made as if I was entitled to all of it, and payment is made to me in money equal to the value of the entire tract, the whole amount of the purchase money cannot be recovered, but only the value of that part of the land to which I had no right. 7To such an extent does a perpetual exception give a right of action for recovery, as Julianus states in the Tenth Book, that if the purchaser of a tract of land directs his heir to release the vendor from the obligation arising from the sale, and afterwards the vendor, being ignorant of this, transfers the property, he will be entitled to an action to recover the land. The same rule applies where a testator directs the release of his debtor, and the latter, not knowing this, pays the debt. 8Where anyone indebted with reference to the peculium of a son under paternal control pays him the debt, he will be released if he did not know that the latter had been deprived of his peculium; but if he knew it, and made payment, he will not be entitled to an action for recovery because he knowingly paid what was not due. 9If a son under paternal control borrows money contrary to the provisions of the Macedonian Decree of the Senate, and pays the same, and afterwards, having become the heir to his father, takes steps to recover the money; he will be barred by an exception from prosecuting the action for recovery. 10If anyone makes a payment erroneously under the impression that an award has been made against him in an arbitration, he can bring an action to recover the money. 11Where money which is not due is paid either to an heir or the possessor of the property of an estate, suit can be brought for its recovery if the party defends his right to the estate; but if he does not do so, suit can also be brought even for the recovery of money paid which was due. 12A freedman who incorrectly thought that he owed services to his patron performed them, but Julianus states, in the Tenth Book of the Digest, that he is not entitled to an action for recovery even though he performed the services thinking that he was obliged to do so; for a freedman is under a natural obligation to perform services for his patron. But where services of this kind were not performed for a patron, but the latter having asked him to perform some duty, he compromised with the patron for a sum of money and paid it, he cannot bring suit for its recovery. Where, however, he did not perform services for his patron which could be classed under the head of duty, but which were those of an artist; for instance, the painting of pictures and other things of this description, he, thinking that he was obliged to perform them, it should be considered whether he is entitled to an action for recovery. Celsus, in the Sixth Book of the Digest, holds that the reasons for the performance of the services are of such a character that they may not be rendered for or by the same person; since very frequently the strength of the man, or the time, as well as the circumstances, will change the ground for requiring them; and therefore a party may not be able to render them, even if he should be willing to do so. He further states that services of this kind are subject to appraisement; and sometimes we are permitted to provide one thing and bring an action for the recovery of another; as, for example, suppose I convey land to you which I was not obliged to convey, and I bring an action to recover the crops; or I give you a slave whom I was not obliged to give you, and you sold him for a small amount without fraudulent intent; you are certainly only bound to refund as much of the purchase-money as you may have; or suppose I have increased the value of a slave at my own expense; should not these matters admit of an appraisement? He also says that in the case which is proposed a suit for recovery can be brought for the amount for which the services of the slave could have been hired. It is asked by Marcellus, in the Twentieth Book of the Digest, where a claim for services on the ground of duty has been assigned by the patron, whether the freedman is not obliged to render such services? He says he is not obliged to do so, unless they relate to a trade and should be performed for another if the patron orders this to be done, but where the freedman performs services on the ground of duty, the claim for which has been assigned, he cannot bring an action for recovery against the creditor for whom he performed such services (where this was done with reference to another and the creditor had received that to which he was entitled) nor can he bring an action against his patron, because the services were due to him by natural obligation. 13Ad Dig. 12,6,26,13Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 427, Note 4.Where anyone stipulates with me for ten aurei or Stichus, and I pay him five, the question arises can I bring an action for recovery? This question depends upon the facts as to whether I am not released to the amount of five aurei; for, if I am, an action for recovery will not lie; but, if I am not released, can such an action be brought? It has, however, been established (as Celsus states in the Sixth Book and Marcellus in the Twentieth Book of the Digest) that the claim for half an obligation cannot be annulled; so that if a party pays five aurei, the question as to whether he will be released must remain in abeyance, and he may be sued for the remaining five aurei or Stichus. Then, if he pays the remaining five, it must be held that he has discharged the original indebtedness, and if he delivers Stichus, he can bring an action to recover five aurei as not having been due. Thus his later payment will establish whether, when the first five were paid, they were due or not. But if after the five aurei were paid, and Stichus was delivered, I prefer to keep the five aurei and return Stichus; Celsus asks whether I should be heard? He thinks that, in this case there is ground for an action to recover five aurei, for even though both payment and delivery of the slave may have been made simultaneously, I should be permitted to retain whichever I prefer. 14He also says that if there are two heirs of the stipulator, that five aurei cannot be given to one of them and a share in Stichus to the other. The same rule applies where there are two heirs of the promisor; and, according to this, there will be no release unless either five aurei or a share in Stichus is given to each of them.

27Paulus, On the Edict, Book XXVIII. Where anyone thinking that he is obliged to make payment at some certain place, pays something that is not due, he can bring an action to recover the money anywhere that he chooses; for the special right of action for recovery does not follow the mistaken opinion of the person who pays.

28The Same, On the Edict, Book XXXII. Where a judge discharged a party improperly, and he who is discharged pays the debt voluntarily, he cannot bring an action to recover the money.

29Ulpianus, Disputations, Book II. Sometimes the personal condition of the party establishes a ground for recovery; for example, where a ward without the authority of his guardian, or an insane person, or one who has been forbidden the management of his property, makes payment; for, generally speaking, there is no doubt that there is ground for an action under these circumstances; and where any money remains, suit can be brought for its recovery, but if it has been spent there will be ground for a personal action.

30The Same, Disputations, Book X. Where anyone is both creditor and debtor in a case in which no set-off can be allowed, and he pays the debt; he has no right of action to recover the money because it was paid when it was not due, but he can bring an action for his own debt.

31The Same, Opinions, Book I. Where anyone, through mistake, makes provision for payment to a creditor of a larger amount than his share of the estate warrants, he has a right of action for recovery on the ground of a promise made for payment of what was not due.

32Julianus, Digest, Book X. Where anyone is obliged to deliver Pamphilus or Stichus, and delivers both of them at the same time, and afterwards either both or one of them should happen to die, he cannot recover anything; for what still remains will be applied to the payment of the obligation. 1Where a surety enters into an agreement that suit shall not be brought against him for money which is due, but through carelessness he pays it, he can bring a personal action against the stipulator to recover it, and therefore the principal debtor will remain liable, but he himself will be protected by his exception; nor does it make any difference whether the surety or his heir makes payment. If, however, the principal debtor should become heir to the surety, and pay the debt, he cannot bring an action for the recovery of the money, and he will be released. 2Where a woman believes that she is obliged to transfer property as dowry, and gives anything by way of dowry, she cannot bring suit for its recovery; for, leaving her mistaken opinion out of consideration, the question of duty remains, and what is paid on this account cannot be recovered by an action. 3Where a party promises in general terms to deliver a slave, the case is the same as where one is bound to give a slave or to pay ten aurei; and therefore if he delivers Stichus, thinking that he had promised to do so, he can bring an action for his recovery, and he will be released by giving any other slave whatsoever.

33The Same, Digest, Book XXXIX. If I build on your unoccupied land, and you obtain possession of it afterwards, there will be no ground for an action for recovery, because no business contract was made between us; for he who pays money which is not due, by this act transacts business to a certain extent, but when the owner of land takes possession of a building erected thereon by another, no business transaction takes place; for, in fact, even if a person who built upon the land of another should himself deliver possession, he would not have a right of action for recovery, because he would not, in any respect, have transferred the property to him who received it, as the owner would merely have obtained possession of what was already his. Therefore it is established that if the party who thought himself to be an heir should prop up a house which was part of the estate, he could be reimbursed for his expenses in no other way than by retaining the property.

34The Same, Digest, Book XL. Where an entire estate has been left in trust to some one and, in addition to this, a tract of land if he should pay ten aurei to the heir, and the heir states that he is doubtful as to the solvency of the estate, and relinquishes it in accordance with the Trebellian Decree of the Senate; the party aforesaid will have no reason to pay him the money, and hence he can recover by means of an action whatever he may have given for the purpose of complying with the condition.

35The Same, Digest, Book XLV. Where anyone pays a sum of money for the reason that no defence was made to an action for its recovery, even though he subsequently may be ready to set up a defence, he cannot recover what he has paid.

36Paulus, Epitomes of the Digest of Alfenus, Book V. The slave of a certain party without the knowledge of his master lent a dish, and the party to whom he lent it pledged it and took to flight, and he who received it in pledge said that he would not return it unless he received the money; which was paid to him by the slave, and he returned the dish. The question arose whether an action could be brought against him for the recovery of the money? The answer was that if he who received the dish in pledge knew that it belonged to another, he had rendered himself liable for theft; and therefore if he received money from the slave for the purpose of redeeming stolen property, an action could be brought against him. But if he did not know that the article which was deposited with him belonged to another, he is not a thief; and besides, if the money had been paid to him by the slave in behalf of the party from whom he had received the pledge, suit could not be brought against him for the recovery of the same.

37Julianus, On Urseius Ferox, Book III. I, being ignorant of the fact, purchased my own slave from you, and paid you the money for him. I am perfectly convinced that I am entitled to an action against you for the recovery of the money, and that such a suit can be brought against you for that purpose, whether you knew that the slave was mine, or were not aware of it.

38Ad Dig. 12,6,38Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 129, Note 7; Bd. II, § 289, Note 26.Africanus, Questions, Book IX. Where two brothers were under the control of the same party and one of them borrowed money from the other and paid it to him after the death of their father, the question arose can it be recovered by an action? The answer was that there was no doubt that suit might be brought for the amount of the share to which the heir was entitled to inherit from his father; but with reference to the share which his brother was to inherit, he could bring suit only in case that much had come into the hands of the brother out of his own peculium; for the natural obligation which existed was held to have been removed by the very fact that his brother had obtained part of the former’s peculium, and therefore, if the peculium had been previously bequeathed to the son, that is to say, the same one who was indebted to his brother, a deduction of this amount could be made by the latter. This exactly coincides with the opinion approved of by Julianus, that if the party had owed anything to a stranger and it had been collected from him after the death of his father; he would be entitled to a right of action for partition of the estate, in order to recover the amount from his co-heir to the extent that the creditor would have been able to collect from them by an action De peculio. Therefore, where proceedings are instituted in an action for partition of the estate, it is only just for the peculium to be divided, so that the party shall be indemnified by his co-heir with reference to a certain portion of it; and hence, as he could defend himself against a stranger, much more should he be indemnified against what he owed his brother. 1The question has been asked whether, where a father lends money to his son and the latter pays it after being emancipated, he can bring an action for the recovery of the same? The answer was that if no part of the peculium remains in the possession of the father, an action cannot be brought by the son, and what proves that the natural obligation still exists is that if a stranger brought an action De peculio within a year, the father could deduct what the son owed him. 2On the other hand, where a father owed money to his son and paid the latter after he has been emancipated, he cannot recover it; for it is proved by the same argument that the natural obligation still exists in this instance, because if a stranger should bring an action De peculio within a year, the peculium would be held to include what the father owes him. The same rule applies where a foreign heir pays a disinherited son what his father owed him. 3I received security for a legacy, when the surety paid me it appeared that I had no right to the legacy; and it was held that the surety could recover the money by an action.

39Marcianus, Institutes, Book VIII. Where anyone, when he can have security furnished him by the beneficiary of a trust, does not do so; the Divine Severus and Antoninus stated in a Rescript that he can bring an action to recover whatever he has paid over and above the amount.

40The Same, Rules, Book III. Where anyone is entitled to a perpetual exception, he has a right of action to recover anything paid by mistake; this, however, is not universally applicable, for where an exception is granted in behalf of the party against whom proceedings were instituted, he can bring suit to recover what he paid, as happens in the case of securities under the decree of the Senate; but where the exception is granted by way of grudge against the party to whom the money is due, whatever has been wrongfully paid cannot be recovered; for example, where a son under parental control borrows money against the Macedonian Decree of the Senate, and afterwards, having become his own master, pays it, he cannot bring an action to recover the same. 1Where a part of a house is left in trust from a certain day, and before the time when the trust vests, it burns, and the heir rebuilds it at his own expense, it is established that the expense of the same must be deducted from the amount included in the trust; and if the heir delivers the house without deducting the said expense, an action may be brought for the recovery of an uncertain amount on the ground that the heir paid more than was due. 2If a patron enters into an agreement with his freedman that suit shall not be brought against him for services, and anything should afterwards be paid by the freedman, suit may be brought to recover the same.

41Neratius, Parchments, Book VI. Where a ward, without the consent of his guardian, promises in a stipulation to make payment and does so, he will have a right of action for recovery; for the reason that he did not owe the money even under natural law.

42Ulpianus, On the Edict, Book LXVIII. It is not customary for penal sums which have been paid to be recovered by an action.

43Paulus, On Plautius, Book III. Where a party swears that he is not obliged to pay, all controversy is terminated, and it must be stated that, in this instance, money which has been paid can be recovered.

44The Same, On Plautius, Book XIV. An action for recovery cannot be brought against the party who has received that which is his own; even though payment was made by another person than the real debtor.

45Javolenus, On Plautius, Book II. Where a party sold an estate and transferred it to the purchaser, but failed to retain what the deceased owed him, he can bring an action for its recovery; as anything which is paid in excess of what is due can properly be recovered by a personal action.

46The Same, On Plautius, Book IV. A party who pays in the name of the heir and with money belonging to the heir, legacies which are not due, cannot himself bring an action for the recovery of what he paid; but if he paid the money of the heir without the knowledge of the latter, then the owner of the money, it is held, can properly bring suit to recover it. The same rules apply to corporeal property of all kinds.

47Ad Dig. 12,6,47ROHGE, Bd. 22 (1878), Nr. 66, S. 299: Cond. possessionis gegen den aus Irrthum Besitzenden. Besitz ein Vermögensobject.Celsus, Digest, Book VI. You promised, through a mistake, to pay money which was not due, and the party who was your surety paid it. I am of the opinion that, if the surety paid it in your name you will then be liable to the surety, and the stipulator will be liable to you; for it is not to be expected that you should first ratify his act, since you may be held to have directed the surety to make payment in your name. If, however, the surety made payment in his own name of a sum which he did not owe, he can bring an action against the stipulator as having paid money which was not due under the Law of Nations; but where there is a deficiency in the amount which he can recover from the party whom he paid, this he can recover from you by an action on mandate; provided he who was bringing suit in ignorance of the facts should not be barred by an exception.

48The Same, Digest, Book VI. Where anyone promises that, if something is done by him or when it has been done, he will pay ten aurei, and he pays the sum that he promised before the act is performed; he will not be held to have done what he promised, and therefore he can bring an action to recover the money.

49Modestinus, Rules, Book III. Suit can be brought for the recovery of money only against those to whom the money has been in some way paid, and not against those whom the payment benefits.

50Pomponius, On Quintus Mucius, Book V. Where anyone knowingly pays what he does not owe with the intention of afterwards bringing suit to recover it, he has no right of action.

51Ad Dig. 12,6,51Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 426, Note 12.The Same, On Quintus Mucius, Book VI. In those cases in which we have a right of retention of property but no right of action to recover the same, if we deliver said property we cannot sue to recover it.

52Ad Dig. 12,6,52Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 423, Note 11.The Same, On Quintus Mucius, Book XXVII. We make payment either for a good reason or for a purpose, and the reason may depend upon what has already passed, for example, where I make payment because I have obtained something from you or something has been done by you, so that, even if the reason is nonexistent, no action will lie for the recovery of the money; but payment for a purpose is made where some act is to be performed, and if this does not take place, a suit for the recovery of the money will lie.

53Ad Dig. 12,6,53ROHGE, Bd. 22 (1878), Nr. 66, S. 299: Cond. possessionis gegen den aus Irrthum Besitzenden. Besitz ein Vermögensobject.Proculus, Epistles, Book VII. A master gave his slave freedom by his will, on condition of his paying ten aurei, and the slave, not knowing that the will was void, paid me the ten aurei; the question arises, who has a right of action to recover the money? Proculus answered that if the slave paid the money out of his peculium, when permission to do so had not been granted him by his master, the money remains the property of his master, and he can bring suit for the recovery of the same by an action in rem. But where another party, at the request of the slave paid me his own money, it becomes mine, and the owner of the slave on whose account it was paid can bring an action for its recovery; but a more indulgent, as well as a more practical method would be for the party who paid the money to himself recover what belongs to him directly from me.

54Papinianus, Questions, Book II. Where payment is made through mistake, on grounds which are not valid in law or have no force or effect, an action for recovery can be brought.

55The Same, Questions, Book VI. Where a depredator rents urban estates, what he receives as rent cannot be recovered in an action by the party who paid it, but the trespasser will be liable to the owner. The same rule applies to money paid for transportation in ships which a person of this kind leased or controlled, as well as to compensation to slaves whose services were leased by him; for, indeed, where a slave who is not hired out pays the price of his services to a trespasser, as if he were his owner, the money paid does not become the property of the receiver. If such a party receives money for transportation by ships which he hired out as the owner, or the rent of tenants, he will be liable for money paid which was not due to him, and the party who pays is not released by doing so; so that it is usually held that suit can be brought to recover the profits from a trespasser, and this only can take place where the profits belonged to the owner.

56Ad Dig. 12,6,56Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 349, Note 5.The Same, Questions, Book VIII. It is sufficient to establish a case of money not due where it is uncertain whether the defence based on an exception is temporary or perpetual. For, if the party enters into an agreement that suit shall not be brought against him until Titius becomes Consul, then, because an exception may become perpetual if Titius should die, which if Titius should obtain the consulship will be temporary, it may be stated with perfect correctness that whatever is paid in the meantime can be recovered. For as an agreement for money to be paid at a certain time does not any more give rise to an action for recovery than if the debtor made payment at the appointed time; so it is evident that where there is a lawful defence which is based on an uncertain ground a conditional obligation exists.

57Ad Dig. 12,6,57ROHGE, Bd. 22 (1878), Nr. 66, S. 299: Cond. possessionis gegen den aus Irrthum Besitzenden. Besitz ein Vermögensobject.The Same, Opinions, Book III. With reference to the next payment in the name of a boy who has not reached puberty, the latter has a right of action for the recovery of the money. 1When a creditor directs that a debt shall be paid to his agent, in this instance, if more money is paid than was due, the agent will be liable to an action for the payment of what was not owing; but if the creditor, when appointing someone to receive payment, expressly mentioned a larger sum to be paid to him, an action for the recovery of money paid which was not due will lie against the party who appointed him, and the right of action will not be held to be taken away if suit is brought against the said agent in vain.

58The Same, Answers, Book IX. A testator left a trust to a manumitted slave in such a way that he obtained his freedom by the will; and after he had received the money without applying to the court, he was pronounced to be freeborn. As the money left under the trust was not due, an action will lie for the recovery.

59The Same, Definitions, Book II. Where a surety who is legally released pays money through mistake, he will not be prevented from bringing an action for its recovery; but if the principal debtor should afterwards himself make payment by mistake, he cannot bring suit to recover, since the first payment, which was void, does not dissolve a natural or a civil obligation if the principal debtor was liable.

60Paulus, Questions, Book III. Ad Dig. 12,6,60 pr.ROHGE, Bd. 22 (1878), Nr. 22, S. 99: Bedeutung eines den Debitor absolvierenden Erkenntnisses für die condictio der vorhergezahlten Schuld, wenn das absolvirende Erkenntnis auf Versehen des Gläubigers beruht.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 129, Note 7.Julianus denied that a debtor who actually owed money could bring an action for its recovery after issue had been joined and while the suit was still pending; because he could not bring the action if he was discharged, or if judgment was rendered against him, for, even though he were discharged, he would still remain a debtor by natural law; and he states that his case would be similar to that of a party who promised that he would pay whether a certain ship came, or did not come from Asia, since occasion for payment arises from either ground. 1Where, however, a party who owes money absolutely, promises to pay it under a certain condition, with a view to renewal; many authorities hold that, if the money is paid while the renewal is pending, an action can be brought for its recovery, because it is still uncertain under which obligation he makes payment; and they hold that the same rule applies if we suppose that two different persons promise the same money, one absolutely, and the other under some condition, with the intention of renewing the contract. The cases, however, are not similar; as in that of the absolute and conditional stipulation, it is certain that the same party will be indebted.

61Ad Dig. 12,6,61Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 463, Note 31.Scævola, Opinions, Book V. The guardians of a ward paid certain creditors of his father out of the estate of the latter, but afterwards, the property not proving to be sufficient, they caused the ward to reject the estate; and the question arises whether the creditors would be obliged to return the overplus paid them by the guardian, or whether they must return all they received? I answered that, if no fraud had been committed, nothing was due to the guardians or to the ward, but that they were liable to the other creditors for the amount of the excess of the debts which had been paid.

62Marcianus, Trusts, Book IV. Where a trust has been inserted into a stipulation, even though it was not due, still, because it has been promised for the purpose of complying with an obligation by a party who was aware of the facts, it is due and payable according to law.

63Gaius, Cases. Neratius speaks of a possible case where a party who could not sue to recover what he had given, on the ground that he had discharged a debt, is still not released; for example, where he was obliged to deliver a certain slave, and gives one who was to be free under a certain condition; for, in this instance he is not released because he does not make the said slave the absolute property of the stipulator; still, he cannot recover him because he was paying a debt.

64Ad Dig. 12,6,64Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 289, Note 26.Tryphoninus, Disputations, Book VII. Where a master owed money to his slave and paid him after he was manumitted, he cannot bring an action for its recovery; even though he paid thinking he was liable to proceedings to force him to do so, since he acknowledged a natural debt. For, as freedom exists under natural law and the domination of persons was introduced by the Law of Nations, the question as to whether a debt exists or not together with the right of action for its recovery, must be considered with reference to natural law.

65Paulus, On Plautius, Book XVII. Ad Dig. 12,6,65 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 423, Note 11.In order that we may discuss the recovery of property by law in general terms, it must be understood that property is either delivered on account of a compromise, or for a past consideration, or in compliance with some condition, or for some act to be performed, or where there is no indebtedness; and in all these instances the question arises with reference to the recovery of the property. 1And, in fact, with reference to its delivery on account of a compromise, if there is not good reason for it, no action will lie for its recovery, since if there was a contest, the fact that the contest has been abandoned is held to be a good ground; but where evident fraud is disclosed and the compromise is void, the action for recovery will be granted. 2Ad Dig. 12,6,65,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 423, Note 11.Moreover, where something is given for a past consideration, for example, because I thought that I had been assisted in my business by the person in question, although this was not true; then, for the reason that I wished to make him a gift, notwithstanding I was laboring under a false impression, an action for the recovery of the gift will not lie. 3I can, however, proceed by a personal action on account of a condition upon which the payment of a legacy or the transfer of an estate is dependent, even though no legacy was left me, or, if it was, I was deprived of it, so that I can bring suit for the recovery of what I gave; since I did not give it with the intention of making a contract, and because the object on account of which I had made the gift was not accomplished. The same rule applies if I was either unwilling or unable to enter upon the estate. It cannot, however, be said to be applicable where my slave was appointed an heir under a condition and I give something, and afterwards, the slave having been manumitted, enters upon the estate; for in this instance the object is attained. 4Ad Dig. 12,6,65,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 423, Note 11.What is given in consideration of an act to be performed confers a right of action in accordance with what is proper and just; as, for instance, if I give you something in order that you may perform some act, and you do not perform it. 5Where a party brings suit for the recovery of something which is not due, the profits and the offspring of female slaves that were given must also be returned, after all expenses have been deducted. 6Ad Dig. 12,6,65,6Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 186, Note 16.Where grain has been delivered which was not due, its quality must be taken into consideration; and if the party has consumed it, an action can be brought for its value. 7In like manner, where lodgings were given, I can bring an action for the money, not indeed for the amount for which I could have rented them, but for the amount for which you would have rented them. 8Where I delivered you a slave that I did not owe you, and you manumitted him, if you did this knowingly you will be liable for his value, but if you did it ignorantly, you will not be liable; but you must make good the value of his services as a freedman, and transfer any estate obtained through him. 9Payment is not due, not only where it is absolutely not owing, but also where it is owing to another and is paid to a third party, or where what one man owes another he pays as if he himself owed it.

66Papinianus, Questions, Book VIII. This suit, based on justice and equity, is ordinarily employed for the recovery of property which belongs to one party and is found in the possession of another without any right to the same.

67Scævola, Digest, Book V. Ad Dig. 12,6,67 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 427, Note 10.Stichus, having received his freedom under the will of the party whom he thought to be his owner, on condition that, for ten years after the death of the latter he would pay ten aurei annually to his heirs, paid the prescribed sum for eight years, as he was directed to do; he afterwards ascertained that he was born free, and did not make any payments for the remaining years, and he was also pronounced free born in court. The question arose whether he could institute proceedings for the recovery of the money as not having been due, and, if this was the case, by what kind of an action? The answer was that, if the money he paid had not been obtained either by his own labor or through the property of him whom he had served in good faith, an action could be brought for the recovery of the same. 1A guardian paid a larger sum than was due to the creditor of his ward, and did not give himself credit when he brought an action on guardianship; I ask whether he would have a right of action for recovery against the creditor? The answer was that he would. 2Titius, who had many creditors, among whom was Seius, having privately transferred his property to Mævius by a sale, with the understanding that the latter would satisfy his creditors, Mævius paid to Seius, as if it was owing to him, money which had already been paid by Titius; and the question arose whether, when receipts were afterwards found in the hands of Titius having reference to debts which had been partly paid, who had a right of action for the recovery of the money which had been paid without being due, Titius the debtor, or Mævius who had been appointed agent in his own behalf? The answer was that, in accordance with what had been stated, the party who paid last had the right of action. 3The same individual asked whether the agreement which it was customary to insert in the settlement of accounts, namely, that there should be no further controversy between the parties growing out of the said contract would bar the action for recovery. The answer was that nothing was stated which would render it a bar. 4Lucius Titius lent to Gaius Seius, who was under twenty-five years of age, a certain sum of money, and received from him a certain sum as interest. The heir of Gaius Seius, the minor, obtained from the Governor of the province an order for complete restitution against Publius Mævius to avoid paying the debt due to the estate; but no mention was made before the Governor of an action for the recovery of the interest on the principal which Seius, who was under twenty-five years of age, had paid, nor was any judgment rendered by him with reference to the same. I ask whether the heir of Gaius Seius, the said minor under twenty-five years of age, can bring an action for the recovery of the interest which the latter had paid to the creditor as long as he lived? The answer was that, according to the facts stated, an action would not lie for the recovery of what the deceased had paid as interest. I ask also, since you think that an action cannot be brought for recovery, whether the heir can retain the interest out of some other debt. The answer was “No, not even that.”