Die laesio enormis und der dolus re ipsa heute: die Verschuldensfrage

Laesio enormis and dolus in re ipsa nowadays: the question of fault. The mediaeval interpreters of Roman law have worked out the dolus re ipsa-concept to explain the mysterious laesio enormis (C. 4,44,2 [a. 285]). They supposed the inequality in exchange to be a result of malicious undertaking, for which paradoxically, no one was personally liable (D. 45,1,36 [Ulp. 48 Sab.]). In course of time, the incorporation of laesio enormis into the scheme of dolus turned into a presumption of a malicious act on the part of the enriched party, even though the laesio enormis is free from subjective criteria. It is astonishing how little the dolus re ipsa is discussed, although the modern paradigm for correcting inequality in exchange is based on the same assumptions. This 'Wiederkehr der Rechtsfigur' certainly deserves more attention.