2. Roman Law in the Modern Civil Codes

When we refer today in modern German law to claims for recovery of property, we distinguish between a claim based on ownership (rei vindicatio, Vindikation) and one based on unjustified enrichment (condictio, Kondiktion).1° Where a possessor makes improvements to an object that does not belong to him and which he is not entitled to keep but has to return under a rei vindicatio, he may claim compensation from the owner.

The relevant rules are laid down in §§ 994ff. of the German Civil Code (BGB); they are inspired by the Roman rules on the restitution of expenditure (impensae).11 The most important unjustified enrichment claim, which is laid down in § 812 I 1, 1st alternative BGB, is often referred to as condictio indebiti (from indebitum solutum - that is, a payment that was not owed). § 812 I 2 BGB contains the condictiones ob causam finitam (the enrichment claim arising from the fact that the legal ground for a transfer has subsequently fallen away), and causa data causa non secuta (the enrichment claim for a cause that has failed to materialize).¹² In § 817,1 BGB we encounter the condictio ob turpem vel iniustam causam (the enrichment claim based on the recipient having acted illegally or immorally in receiving the transfer), which, however, can be excluded according to the maxim in pari turpitudine melior est causa possidentis (where both parties have acted illegally or immorally, the possessor is in a comparatively better position and therefore does not have to render restitution): § 817,2 BGB.¹³ Here even the terminology still in use points to the Roman origins of modern private law.¹⁴ The link is not always so obvious. The term ‘delict’ (Delikt) is derived from the Roman delictum; but the German word for contract (Vertrag, based on sich vertragen, meaning to make up, to be reconciled) was also formed on the model of the Latin term pactum (based on pacisci, to make peace),¹⁵ as we find it in the edict of the Roman praetor (pacta conventa...

servabo).1⁶ The famous provision on good faith in contract law (§ 242 BGB), as interpreted by the German courts from very soon after the BGB had entered into force, originates in the exceptio doli, as well as in the bona fides that governed the Roman consensual contracts.¹⁷A person is barred from exercising a contractual right if, by doing so, he contradicts his own previous behaviour (venire contra factum proprium), if he himself has not acted in accordance with contract (tu quoque), or if he claims something that he will subsequently have to return to the other party (dolo agit qui petit, quod statim redditurus est). We read these Roman legal maxims into § 242 BGB.1⁸ Sometimes the draftsmen of the BGB even received such maxims into the text of the BGB, although not in Latin. § 117 BGB on simulation (plus valere quod agitur, quam quod simulate concipitur) and § 305c II BGB (interpretatio contra eum qui clarius loqui debuisset, or contra proferentem rule)¹⁹ provide examples. Systematic distinctions such as the one between contract and delict, between absolute and relative rights, and between the law of obligations and property law are inspired by Roman law. So are standard types of contract such as sale, exchange and donation, mandate, deposit and suretyship, and the distinction between loans for use (Leihe) and loans for consumption (Darlehen); general standards of liability such as the various forms of fault (culpa, dolus, diligentia quam in suis),²⁰ as well as specific instances of no-fault liability, such as the ones in § 536a BGB (liability of the lessor for defects in the object leased)²¹ and §§ 701ff. BGB (innkeepers’ liability);²² as well as innumerable concepts, legal institutions, and individual rules: the invalidity of immoral contracts (contra bonos mores),²³ the special rules on delay on the part of the debtor (mora debitoris) and the creditor (mora creditoris),²⁴the rights of termination and price reduction on account of delivery of a defective object (actiones redhibitoria and quanti minoris),²⁵ management of someone else’s affairs without authority (negotiorum gestio),²⁶ and liability for damage done by animals.²⁷ These are just a few random examples that cannot do more than provide a cursory impression of the BGB’s Roman impregnation and that have, moreover, been taken from only one specific area of private law: the law of obligations.

Similar lists can be compiled for other areas, particularly property law and the law of succession.²⁸ The same can be said about the other continental codifications in Europe.²⁹The French Code civil is in a number of respects even more Roman than the BGB:³⁰ in its rejection, in principle, of contracts in favour of third parties (art. 1121 Code civil, perpetuating the rule of alteri stipulari nemo potest);³¹ in its insistence on certainty of price as a requirement for the validity of contracts of sale (art. 1591 Code civil, the modern version of the requirement of pretium certum);³² in its rule that set-off operates ‘de plein droit par la seule force de la loi, meme a l’insu des debiteurs’ (art. 1290 Code civil, which is supposed to be based on set-off ipso iure in Roman law);³³ and in its perpetuation of the systematic categories of contract, quasi-contract, delict, and quasi-delict.³⁴

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Source: Johnson David (ed). The Cambridge companion to Roman Law. Cambridge University Press,2015. — 554 p.. 2015

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