Razvoj kondikcije od rimskog do savremenog prava
Development Of Condiction From Roman To Modern Law

Summary/Abstract: The article is dealing with centuries` long development of condiction as one of the most efficient legal remedies for unjust enrichment. Condiction is derived, like many other institutes, from Roman law. At the beginning, Roman law had only one type of condiction which was applied when a certain amount of money or an individualized item was transferred from the possession of one to the possession of another, without a valid legal title. Due to a creative activity of roman jurists, its field of application was widened. Codex Iustiniana, therefore, has a wide spectrum of different types of condictions applied to various cases of unjust enrichment. Roman law, however, did not overcome casuistic approach which prevented formulating a general condiction which would have the function of general enrichment action. The merit of glossators is that they had sistematized condictions and noticedthe underlying principle of condiction i.e. the prohibition of unjust enrichment. Hence, they suggested that condiction should apply in cases of unjust enrichment which were present in the sources but without assigned legal remedy. Even though glossators recognized enrichment action in condiction, their approach did not depart from that of Roman law. Consequently, they could not extend the application of condiction to the cases of unjust enrichment not known to Roman law sources. The first distinguished thought on condiction as general enrichment action was that of Savigny, the founder of the German Historical School. Savigny pleaded for one type of condiction which would be applied in every case of unjust enrichment i. e. when debtor is enriched to the detriment of creditor without a legal basis or on the legal basis which subsequently ceased to exist. Bearing in mind the application of actio de in rem verso in ius commune, pandectists created a separate institute of unjust enrichment which represented a sublimation of different thoughts on condiction and actio de in rem verso. Valid Serbian law also prescribes separate institute of unjust enrichment which, besides general enrichment action, deals with some particular types of condiction and actio de in rem verso.

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