On-line version ISSN 2411-7870
KRAMPE, Christoph. Julian im dialog über mutuum, traditio und causa. Fundamina (Pretoria) [online]. 2014, vol.20, n.1, pp. 489-499. ISSN 2411-7870.
Book 41, Title 1 of the Digest of Justinian, is entitled "The Acquisition of Ownership of Things". In it (D. 41,1,36) Julian discusses the problem of acquisition (Digest, book 13) when there is agreement on the thing delivered but a dispute over the grounds for delivery. The answer of the classical jurist is "I see no reason why the delivery should not be effective". The modern German theory of effective delivery - even where there is such a misunderstanding - as prepared by Savigny in the nineteenth century, is based on Julian's text. The very peculiar "why not" phrase non animadverto cur inefficax sit traditio could be explained as an expert reply (responsum) to a question in a practical case. In particular, the final example given of misunderstanding - for when I give you coined money and you receive it as a loan - shows e contrario what the real dispute between the parties was, namely an action (condictio) based on a loan where one party denies that it is a loan and claims it is a gift. Julian is cited and criticised by Ulpian in his Disputationes (book 7), referring to the same case of gift/loan (D. 12,1,18: I give you money as a gift but you receive it as a loan for consumption). The extract from Ulpian records an exchange of views in the light of threatened litigation. While Julian denies that there was a gift, but does not express his opinion on a loan, Ulpian also denies that there was a loan and proposes an exceptio doli after consumption.