Undue payment of goods between roman tradition and the present time

• Author: Cristinel-Ioan Murzea
• Position: Faculty of Law 'Transylvania' University of Brasov, Romania
• Pages: 58-62

AGORA International Journal of JuridicalSciences, http://univagora.ro/jour/index.php/aijjs

ISSN 1843-570X, E-ISSN 2067-7677

No. 2 (2017), pp. 58-62

58

UNDUE PAYMENT OF GOODS BETWEEN ROMAN TRADITION AND THE

PRESENT TIME

C.I. MURZEA

Cristinel Ioan MURZEA

Faculty of Law

“Transylvania” University of Brașov, Romania

*Correspondence:Faculty of Law, 25 Eroilor Blvd, Brașov, Romania

E-mail:cristinel.murzea@unitbv.ro

ABSTRACT

Undue payment is one of the numerous legal institutions created by the eminent Roman legal

advisers, who, by exquisitely developing the legal technique and practice would create that

certain tool which would valorize the subjective rights in regard to reestablishing the

equilibrium and the equivalence which the parties of a legal obligation report owe to one

another, within an uncorrupted legal circuit; these institutions would later prove their

viability and permanence across centuries, being reconfigured according to the new factors

which configure law in the modern and contemporary age within the continental system of

law.

KEYWORDS: payment, unjust enrichment, legal fact, civil obligation, quasi contract

INTRODUCTION

The principle of equity which would later become one of the postulates of Roman law, was

expressed in the phrase used by Celsus according to which, Jus estarsboni et aequi,

1

is

suggestively shown in the legal construction named “undue payment”, an institution seen by

the Roman lawmakers as of one the forms of manifestation of quasi contracts, in regard to the

effects it causes.

Although quasi contracts were known as distinctive sources of civil obligations, in Roman

doctrine they were seen as those licit legal acts which would produce legal effects similar to

those which reside in contracts

2

. Thus, in regard to the form, there are some differences

between contracts and quasi contracts, while in regard to the legal effects they cause, there are

certain similarities which lead to perfect symmetry.

Undue payment aims to terminate an obligation; in reality it expresses the licit legal deed seen

as a distinctive source of obligation. The mechanism of this legal operation resides in the fact

that a person performs a payment by error, which was in fact not owed to the person known as

accipiens.

In a subsequent age, Pomponious would rephrase the principle of equity and equivalence of

performances in the light of natural law by showing that “according to natural law it is

equitable that no one would unjustly enrich by causing damage to another person

3

.

According to the principle of equity, the person who made an undue payment had the right to

demand the restitution of payment, namely the repeat of the undue performance

4

, an issue

which, a few centuries later, would be expressed under the direct influence of Roman law, in

the regulation of article 1092 first alignment of the 1864 Civil Code, which stated that “any

payment entails a debt; that which was paid without being owed is subject to repetition in

1

E.Molcuț, D.Oancea, Roman law, Sansa Publishing House, Bucharest, 1993, page 6

2

Ibidem, page 309

3

D.50.17.20.6

4

A.E.Gittard, R.Villers, Droit romain et ancient droit francais. Les obligation s, Paris, 1976, page 295