Universität zu Köln

In Roman like in modern Law throughout the world, gambling, especially dicing, was not a recognised contract and did not produce an action for fulfilment. Repetition of voluntary payment, on the other hand, was likewise denied, unless it was caused by cheat, or the payer was under age or alieni iuris. From betting arose an action only when entered virtutis causa, that means related to competitions held for the sake of physical exercise. This exception was received by the French Code civil and consequently in the whole Romanistic legal family, including the countries of Latin America. The Pretorian Edict refused the owner of a gambling den actions whenever he was beaten up, or if something was stolen during the gambling from his establishment. It is doubtful, however, whether these sanctions were effective. In a special constitution of the year 529 AD, the young Emperor Justinian prohibited gambling severely and allowed the repetition of voluntary payment in an extremely paternalistic manner. Although this constitution was edited four years before the Digest came into force, but only in Greek language, its contents was apparently not received by the Compilers, neither was it recognised centuries later in the Usus Modernus.

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