[PAULUS libro tertio quaestionum. ] §22.3.25.prCum de indebito quaeritur, quis probare debet non fuisse debitum? res ita temperanda est, ut, si quidem is, qui accepisse dicitur rem uel pecuniam indebitam, hoc negauerit et ipse qui dedit legitimis probationibus solutionem adprobauerit, sine ulla distinctione ipsum, qui negauit sese pecuniam accepisse, si uult audiri, compellendum esse ad probationes praestandas, quod pecuniam debitam accepit: per etenim absurdum est eum, qui ab initio negauit pecuniam suscepisse, postquam fuerit conuictus eam accepisse, probationem non debiti ab aduersario exigere.
[PAULUS, in the third book of Questions.]\nWhen a question arises concerning what is not owed, who ought to prove that it was not a debt? The matter must be so regulated that, if indeed the person who is said to have received the money or thing not owed denies this, and the one who paid has proved the payment by lawful proofs, the very person who denied that he received the money must, without any distinction, if he wishes to be heard, be compelled to provide proofs that he received the money as owed; for it is indeed extremely absurd that a person who denied from the beginning that he received the money, after he has been convicted of having received it, should demand proof of the non-existence of the debt from his adversary.
sin uero ab initio confiteatur quidem suscepisse pecunias, dicat autem non indebitas ei fuisse solutas, praesumptionem uidelicet pro eo esse qui accepit nemo dubitat: qui enim soluit numquam ita resupinus est, ut facile suas pecunias iactet et indebitas effundat, et maxime si ipse qui indebitas dedisse dicit homo diligens est et studiosus pater familias, cuius personam incredibile est in aliquo facile errasse.
But if from the beginning he confesses indeed that he received the money, but says that it was not paid to him when not owed, no one doubts that the presumption is in favor of the one who received it; for he who pays is never so negligent as easily to throw away his money and pour out what is not owed, and especially if the very person who says he gave what was not owed is a diligent and attentive head of a household, whose character makes it incredible that he easily erred in any respect.
et ideo eum, qui dicit indebitas soluisse compelli ad probationes, quod per dolum accipientis uel aliquam iustam ignorantiae causam indebitum ab eo solutum, et nisi hoc ostenderit, nullam eum repetitionem habere. §22.3.25.1Sin autem is qui indebitum queritur uel pupillus uel minor sit uel mulier uel forte uir quidem perfectae aetatis, sed miles uel agri cultor et forensium rerum expers uel alias simplicitate gaudens et desidia deditus: tunc eum qui accepit pecunias ostendere bene eas accepisse et debitas ei fuisse solutas et, si non ostenderit, eas redhibere. §22.3.25.2Sed haec ita, si totam summam indebitam fuisse solutam is qui dedit contendat.
And therefore, the one who says he paid what was not owed must be compelled to provide proofs that the sum not owed was paid by him through the fraud of the recipient or some just cause of ignorance, and unless he shows this, he has no right of recovery.\n But if the person who complains of what was not owed is a ward, or a minor, or a woman, or perhaps indeed a man of full age, but a soldier, or an agricultural laborer, and inexperienced in forensic affairs, or otherwise enjoying simplicity and given to sloth: then the one who received the money must show that he received it rightfully and that it was paid to him as owed, and, if he does not show this, he must return it.\n But this is so only if the person who gave it contends that the entire sum was paid when not owed.
Sin autem pro parte queritur, quod pars pecuniae solutae debita non est, uel quod ab initio quidem debitum fuit, sed uel dissoluto debito postea ignarus iterum soluit uel exceptione tutus errore eius pecunias dependit: ipsum omnimodo hoc ostendere, quod uel plus debito persoluit uel iam solutam pecuniam per errorem repetita solutione dependit uel tutus exceptione suam nesciens proiecit pecuniam, secundum generalem regulam, quae eos, qui opponendas esse exceptiones adfirmant uel soluisse debita contendunt, haec ostendere exigit. §22.3.25.3In omnibus autem uisionibus quas praeposuimus licentia concedenda est ei, cui onus probationis incumbit, aduersario suo de rei ueritate iusiurandum ferre, prius ipso pro calumnia iurante, ut iudex iuramenti fidem secutus ita suam sententiam possit formare, iure referendae religionis ei seruando. §22.3.25.4Sed haec, ubi de solutione indebiti quaestio est.
But if he complains in part, because part of the paid money was not owed, or because it was indeed owed in the beginning, but either after the debt was discharged he paid again in ignorance, or, being protected by an exception, he paid the money by error: he himself must by all means show this, namely, that he paid more than was owed, or that he paid by error a repeated payment of money already paid, or that, being protected by an exception, he threw away his money in ignorance, according to the general rule which requires those who affirm that exceptions ought to be opposed or contend that they have paid debts, to show these things.\n But in all the cases we have proposed, liberty must be granted to the one upon whom the burden of proof rests to tender an oath to his adversary concerning the truth of the matter, after he himself has first sworn against calumny, so that the judge, having followed the good faith of the oath, may thus form his opinion, the right of referring the oath being preserved to the other party.\n But these things apply where the question is about the payment of what is not owed.
sin autem cautio indebita exposita esse dicatur et indiscrete loquitur, tunc eum, in quem cautio exposita est, compelli debitum esse ostendere, quod in cautionem deduxit, nisi ipse specialiter qui cautionem exposuit causas explanauit, pro quibus eandem conscripsit: tunc enim stare eum oportet suae confessioni, nisi euidentissimis probationibus in scriptis habitis ostendere paratus sit sese haec indebite promississe.
But if a debt acknowledgement not owed is said to have been executed and it speaks indistinctly, then the one in whose favor the acknowledgement was executed must be compelled to show that the debt which he included in the acknowledgement is owed, unless the very person who executed the acknowledgement has specifically explained the causes for which he wrote it; for then he must stand by his confession, unless he is prepared to show by most evident written proofs that he promised this when not owed.