L’actio in factum come surrogato dell’azione di ripetizione? A proposito di Iul. 60 dig. D. 39.6.18.1 e Iav. 13 epist. D. 19.5.10

Abstract

The study touches upon the theme of the relationship between condictio and actio in factum in the matter of innominate contracts. More precisely, the question arises whether the atio in factum could have performed a merely repetitive function, rather than lead to the protection of the negative interest. In this regard the author deals with Iul. 60 dig. D. 39.6.18.1 and Iav. 13 epist. D. 19.5.10, on the subject of donatio mortis causa and (quasi-)usufruct respectively. What the two texts have in common is the fact that in both cases the use of an actio in factum pretoria (pursuant to Gai 4.46) is envisaged in a purely repetitive function and that for both cases a relationship with the issue of the protection of nova negotia has been hypothesized, in particular for Iav. 13 epist. D. 19.5.10. The author’s conclusions go in the direction of excluding such a connection.