DATIO КАО ПРЕТПОСТАВКА ПРИМЕНЕ КОНДИКЦИЈЕ У РИМСКОМ ПРАВУ
DATIO AS AN ASSUMPTION OF CONDICTION APPLICATION IN ROMAN LAW

Summary/Abstract: ondiction represents an action that was created in Roman law and was used for the restitution of a thing which the defendant had acquired without legal grounds at the plaintiff’s expense. The formula of condiction contained a plaintiff’s claim that the defendant was obliged to give (dare oportere), suggesting that the plaintiff had previously transferred the ownership of a thing to the defendant (datio). This paper analyzes the fragments from Digesta in which condiction applies even without datio, i.e. transfer of ownership to the defendant. The conclusion we arrived at stipulates that Roman jurists, in order to sanction as many cases as possible of acquisition without legal grounds at the expense of another, expanded the scope of condiction application. Such expansion was accomplished in several ways. Roman jurists granted condiction in certain cases where the transfer of ownership was not valid (the so-called condictio de bene depensis). In addition, they applied condiction when the plaintiff executed some other act other than the transfer of ownership at the benefit of the defendant. In that way they extended the concept of datio. Finally, Roman jurists granted condiction even in the cases when the defendant’s acquisition was not caused by the performance of the plaintiff (the so-called condictio sine datione). Imposing sanctions on acquisition without legal grounds at the expense of another, which occurred not only by the act of the plaintiff but also by the act of the defendant, the third person, or a natural cause, speaks in favor of understanding condiction as a predecessor of the modern institution of unjust enrichment, whose purpose is exactly the prohibition of acquisition of an economic benefit without legal grounds at the detriment of another.

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