D. 41.1.36 (Iul. 13 dig.) e D. 12.1.18 pr. (Ulp. 7 disp.): tra causa traditionis e negotium contrahere in Giuliano

Abstract

The study deals with the category of negotium in Salvius Iulianus. In this regard, the author examines D. 41.1.36 (Iul. 13 dig.) and D. 12.1.18 pr. (Ulp. 7 disp.), very well-known texts, concerning the topic of the causa traditionis, in which it is discussed whether the case of someone who has given a sum of money with the intention of donating to someone who has rather received it with the intention of borrowing should be considered a donation or a loan. The author excludes that the two texts and in particular D. 41.1.36 could bring arguments in support of the thesis that Julian developed a concept of negotium as an objective relationship between two distinct patrimonies, without any consideration of the will of the parties. On the contrary, from the few sure information that can be drawn from Ulpian’s text, it is clear that in the assessment of the case and particularly on the existence of a causa donandi, Julian relied on a reconstructive process that looked very carefully at the will of the parties involved.