engleski

Ob turpem rem condicere in the Context of Moral Prohibitions in Roman Law

Within the general framework of the use of condictio in classical Roman law, handing over of a thing or a sum of money in order to elicit a counterperformance considered turpis, or immoral, was somewhat specific. It entailed the concept of turpitudo and was structured to reflect societal and legal stance on the matter of improper conduct of parties in private transactions. In a sense, the rules of the use of condictio in matters where turpitudo was involved may be considered as a tool to enforce certain moral prohibitions upon the society. Given the theme of the LXXI Session of SIHDA is La liberté et les interdictions dans les droits de l'antiquité, it may be fitting to analyse liberty and prohibitions in the field of morals within the specific context of proprietary remedies, namely condictio, in Roman law. That is the purpose of this paper. The analysis of this paper is twofold. Firstly, the sources which regulate ob turpem rem condicere will demonstrate the instances of the behaviour which was considered immoral enough to warrant its effect on the use of condictio, and thus illustrate both the bases for certain prohibitions and the technique by which they were legally sanctioned. Secondly, the analysis will try to determine whether the use of condictio in the case of ob turpem rem datio is only an exception to the general use of condictio in the case of ob rem datio, as is the main contention in Romanist studies, or if it has its own raison d'être within the general purview of the use of condictio. This final line of reasoning will be analysed against the backdrop of the origins of the remedy in legis actio per condictionem procedure and main criteria of its use in the formulary procedure, considering all relevant sources thereof.

res turpis, causa turpis, condicere, condictio, moral prohibitions, Roman law

nije evidentirano