Estudio sobre la actio utilis referida en D. 17,1,40 (Paul. 9 ed.): Su alcance en el Código Civil de Bello

This study analyzes the Romanist foundations of the contradiction existing between articles 1574 and 2291 of the Chilean Civil Code with respect to the right of restitution consequent to the payment of the third party prohibente debitore. The analysis focuses on a text written by Paulo in D. 17,1,40, which is at the center of this controversy, by excluding the right of return in favor of solvens even through the actio utilis, which, however, would have been admitted by some legal experts for the purpose of maintaining the aequitas. In this regard, there is a doctrinal debate about the identifying the Roman action that would have been adapted in useful way. Subsequently, the French jurist Robert Joseph Pothier also emphasized the importance of maintaining aequitas for such an event, which would influence the provision of article 2291 of the Civil Code prepared by Mr. Andrés Bello, which admits, in contradiction with article 1574, the right of restitution in favor of solvens to prevent the primary debtor from obtaining an unjustified enrichment.