The Problematic of the Legis actio per condictionem in Roman Law: A Theoretical Perspective
The Problematic of the Legis actio per condictionem in Roman Law: A Theoretical Perspective

Summary/Abstract: This study addresses the problem of the origins and function of the legis actio per condictionem, a procedural innovation introduced by the lex Silia and later extended by the lex Calpurnia. The central question concerns whether this action was designed merely as a procedural alternative to existing forms, or whether it pursued a substantive purpose, namely, to provide legal protection for informal pecuniary transfers and analogous transactions which, until then, lacked adequate safeguards. On the basis of fragmentary primary evidence (Gaius, the Digest, Livy, Plautus) and legislative landmarks (lex Silia, lex Calpurnia, lex Aebutia), combined with doctrinal analysis of concepts such as datio, mutuum, dominium, and aes alienum, the paper advances the thesis that this new modus agendi was introduced as a restitutionary action for money handed over informally, whether as loan or for another purpose, where the debtor had no legal ground to retain it, bridging a gap left by the rigidity of older legis actiones. While the suggestion that the action could also apply in disputes involving peregrini remains hypothetical, it is consistent with the Roman practice of adapting earlier procedures, such as the clarigatio and the rerum repetitio, to new contexts. Methodologically, the research employs both historicalcontextual and legal-dogmatic approaches, correlating the procedure’s abstract formula, thirty-day interval, and limitation to certa pecunia with its likely model in older restitutionary procedures applied to foreigners (status condictusque dies cum hoste, clarigatio). Subsequent statutory expansion through the lex Calpurnia to omnis certa res extended its range, making the condictio a sanction for emergent real contracts, before its scope was curtailed through lex Aebutia and the juristic refinement of datio into transfer of ownership. Thus, the paper reconciles competing theories by demonstrating that per condictionem was both a functional instrument securing restitution in an increasingly monetized society and a procedural innovation shaped by the technical inheritance of the legis actiones; in this dual capacity, it represents a critical step toward the later system of condictiones and offers key insights into the interaction of legislation, jurisprudential development, and socio-economic necessity in the evolution of Roman private law.

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