Учебный год 22-23 / W_W_BUCKLAND_AND_ARNOLD_D_McNAIR_ROMAN_LA
.pdf246 OBLIGATIONS: GENERAL
a conclusion very different from those of our Courts in
Kre//v. Henry and Chandlers. Webster? on the assumption that frustration was equivalent to casus. The contract was hire, and in Roman law, if the service hired was not rendered, and this was not due to the fault of the hirer, he was under no liability to pay for service he had not had and could recover anything he had paid in advance.2 The decisions in the English Courts seem to have been based on the view that the other rule would be unjust.. Lord Alverstone indeed gave this reason in Blakeley v. Muller3 The reclaim of money would be, he said, unjust, in view of the fact that the other party might have expended money in preparation. It is, however, not ideal justice, for the intended letter of the accommodation may receive all the hire without rendering any of the service and may have incurred no expense at all; in any case the expense incurred will bear no relation to the price paid or promised for the seats. The Roman law at first sight seems to err in the opposite way: to have to refund all money received irrespective of what expenses have been incurred looks unfair. But it must be noted that though the contract is in effect set
aside, the action brought will be actio ex conducto, a bonae fidei iudicium in which under the words ex fide bona the index has power to condemn for what in all the circumstances is fair; the formula was gone in the time of the Corpus Juris, but the principle remained. This may be contrasted with the language of Darling J. in Lumsden v. Barton^ for whom it was all or nothing: he * could not find any rule of law by which she could recover half.5
However,in 1942the House of Lords overruled Chandler v. Webster£ holding that a party could recover an advance payment made in respect of a contract which had been
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Ante, p. 245 n. 2. |
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2 |
D. 19. 2. 15. 2, 15. 3, 19. 6, |
30. 1, and see Buckland, Text-book, |
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pp. 505 sq. |
3 [1903] 2 K.B.atp. |
761 n. |
4 (1902), 19T.L.R. 53. |
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See an interesting discussion of these cases by Gutteridge in 50 L.^.R. |
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pp. 108-112 following McElroy. |
6 Supra. |
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subsequently frustrated, if there had been a total failure of consideration ;* and in the next year Parliament extended the rule to cases when the consideration has failed only in part, directing that the payee's expenses be set off against the payer's claim.2
3. CONDITIONS
Conditional promises are of course prominent in the law. But the Roman way of looking at conditions was not quite the same as ours. Leaving fees conditional at the common law and the like out of account, our law appears to recognise two types of condition, conditions precedent or suspensive and conditions subsequent; but the whole treatment of conditions in different branches of English law, conveyances, bonds, contracts and wills (including even differences between gifts of real and personal property), presents a very confused story from which it is difficult to extract any solid principle. The distinction between conditions which are mere conditions and those which are also promises existed in Rome as with us, but not with the same significance.3
Another difference is of more importance, at least in legal theory. To the Romans a condition subsequent was almost a contradiction in terms. There was only one kind of condition, some future uncertain event on which the effect of a transaction was to depend. This excludes on the one hand mere suspension: a contract dependent only on the arrival of some time which must come is not conditional: this is dies and has very different effects. On the other hand it excludes provisions with no futurity in them. A promise * If St Paul's is more than 400 feet high' is not
1 Fibrosa Spolka Akcyjna |
v. Fairbairn Lawson Combe Barbour Ltd., |
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[1943] A.C. 32. |
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2 Law Reform (Frustrated |
Contracts) Act, 1943 (6 and 7 Geo. VI, |
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c. 40). See 60 L.^.R. |
pp. 160-174. For the treatment of'Frustration of |
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Contract' in various |
foreign |
legal systems, see |
Journal |
of Comparative |
Legislation, 3rd ser., xxviii. pp. 1-25; xxix. pp. |
1-19; |
xxx. pp. 55-67; |
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and McNair, Legal Effects of War (3rd ed. 1943), ch. vi: 'Frustration'. 3 See p. 254, post.
248 OBLIGATIONS: GENERAL
for the Romans conditional, though it is with us. The agreement is either void or valid, and though it may be some time before the facts are known, the contract has its full effect, if at all, from the moment when it was made. And what we call a condition subsequent on the contract, the Romans called a condition on the annulment of the contract. Where a sale was to be set aside on a particular event, it was not a conditional sale, but' pura emptio quae sub condicione resolvitur'.1 In such a case the contract produced its full effect at once, as to risks and the like. The Romans distinguished in language more clearly than our books do between those 'conditions subsequent* which merely put an end to the relation thenceforward and those which annul it ab initio, the matter being in fact more important in gifts than in contract.
A contract may be made (i) if an event happens, or (ii) till it happens, or (iii) unless it happens. The first type is in both systems said to be under a condition precedent or suspensive: the contract is not enforceable unless the event happens.
The second type would presumably in our law be said to be under a condition subsequent, but the effect in both systems is the same: the contract is determined for the future when the event happens. Roman law had indeed a complication which we are fortunately without: the contract of stipulation formal promise, was regarded as essentially perpetual, and effect could be given to such terminating provisions only by praetorian assistance.2 But the ordinary commercial contracts were under no such restriction. They could be made to determine on a future event as well as on a future day. The case seems to present no difficulty in Roman law; it is hardly necessary to appeal to the notion of condition at all. In our law indeed a lease for years must have a certain period beyond which it cannot
1
2
D . 18. 2. 2. pr.% 4 1 . 4. 2. 5. D. 45. 1. 56. 4, etc.
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last; but this only makes it necessary, if it is desired to make the lease end on an uncertain event, to make the lease for a term longer than the latest time at which the event can happen, determinable earlier by the event. There does not seem to be any difficulty in a contract for the hire of goods or services till an event happens.
The most interesting type is the third. Here, leaving out of account the case of stipulation the Roman law is clear. A sale or hire * unless such and such an event happens' was an unconditional contract, producing all the normal effects of such a contract precisely as if no such clause had been inserted. The condition was one not on the contract but on its nullification. If the event happened the parties were entitled, subject to questions of culpa and the like, to be restored to their original positions.1
The main difference seems to be that the Romans had thought out the consequences of such a resolutive condition, and confined the notion of resolutive condition to cases in which nullification ab initio was to be the result. In our terminology the distinction is not so clearly drawn between those conditions which, if satisfied, destroy the right or obligation ab initio and those conditions the satisfaction of which simply determines it. Thus the satisfaction of the condition on a bond destroys the obligation ab initio and it is commonly called a condition subsequent: the Romans would have called it resolutory. But elsewhere a condition subsequent is defined and illustrated as one which merely determines the right for the future.2 Our courts seem usually to have treated such conditions, in wills, as defeasances, merely determining the right, even though the testator has expressly said that the gift is to be void if the event happens; where this is impossible, they have usually made it a simple suspensory condition, with
1For illustrations see Buckland, Text-book, pp. 494 sqq.
2E.g. Jarman on Wills, 8th ed. pp. 1458 Jff.; Comyns* Digest, s.v. Condition (C). See also the frustration cases discussed, pp. 244 sqq., ante.
B R CL |
18 |
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inconvenient results to the beneficiary.1 Roman law could reach the desired result in other ways, e.g. inter vivos, by giving a usufruct, which was not thought of as ownership, till the event happened, but this had the disadvantage that it ended necessarily on the death of the beneficiary. Under wills it could be done, more or less, byfideicomrnissa?by which the person to whom property was left could be put under an obligation to transfer when the event happened.3 There is not the same difficulty in Roman law under contract, as the contract of sale never of itself transferred ownership. But if under a contract with a resolutive condition there had been an actual conveyance this was not annulled: the remedy was an action in personam. Hence there was a tendency in classical law to treat such things as suspensive wherever this was possible, but in later law they are often treated as resolutive. But there are many signs of a weakening of the notion of the perpetuity of ownership and Justinian, in some cases, seems to allow of a reversion of ownership.4
Where a transaction was made subject to a condition on the face of it impossible in fact or law, the Roman law, in acts inter vivos, in general avoided the transaction, i.e. the condition took effect at once: it could not be performed and the transaction failed. Our own law seems to be the same, but there is little evidence,^ the reason being that unilateral contracts are much less prominent than in Roman law, so that what there appears as a condition is often consideration with us. But in wills of personalty,
1 Ownership being essentially perpetual a gift of property did not in Roman law admit of such conditions, a rule relaxed under Justinian (ante, p. 93). As to the way in which such difficulties were more or less surmounted in gifts by will (negative conditions) see Buckland, Text-book, pp. 298, 340. 2 P. 173, ante.
3On the extent to which this operated in rem, see Buckland, Equity in Roman Law, pp. 83 sqq.
4Wieacker, Lex Commissoria; Sieg, Bessergebotsk/ause/; Levy, Symbolae
Friburgensesfur O. Lenel, pp. 127 sqq, |
5 See p. 238, ante. |
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perhaps owing to their earlier association with ecclesiastical Courts, it is not surprising that civil law rules have been partially adopted (i.e. the offending condition is struck out1). We need not consider the difficult cases of what may be called conditional conditions, i.e where the condition assumes a state of fact which does not exist, and the court has to determine whether the testator intended the condition to apply in any event or only if the fact were so. It is a question of intent, and it is difficult to get much principle out of the solutions in either system. Leaving these and conditions subsequent out of account, we get a story not quite reconcilable in all details. Swinburne,* whose language has been followed by later writers, tells us that the appointment of an executor on an impossible or unhonest' condition is 'in effect pure and simple*—the civil law rule; indeed only civil law authorities are cited. Yet in legacy, where a condition was legally impossible, the condition operated and the gift failed.3 But in Brown v. Peck* an illegal condition was struck out and the gift was pure and simple. The head-note to Gath v. Burtorfi makes the case decide that if the impossibility is obvious, the gift is pure and simple. But in fact the case decides a different point. A legacy was subject to the condition that the legatee paid a certain debt to the testator. The testator afterwards released the debt. It was held, on the facts, that he meant to waive the condition. With regard to real property Halsbury observes6 that * where the condition is a condition precedent and the gift is of realty, if the condition is impossible for whatever reason, the performance of the condition is not excused* and the gift fails (which is contrary to the Roman rule), and? 'when a condition is void as illegal [or] contrary to public policy... if the gift is of realty, and the condition is precedent, the gift as well as
1 See p. 160, ante. |
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Testaments and Last Wills, 6th ed. p. 249. |
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3 Robinson v. Wheelwright (1856), 6 De G., M., and G. 535. |
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4 (1758), 1 Eden 140. |
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(1839), 1 Beav. 478. |
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* Vol. 39, p. 926. |
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p. 6 |
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the condition fails to take effect'—again not the Roman doctrine.1
In Roman law prevention of the performance of a condition by one interested in non-performance was equivalent to performance,2 and if the condition was one which involved co-operation with a third party, the third party's failure to co-operate had the same effect. This was true at least if the case was under a will, and the testator could not have contemplated refusal, e.g. on a condition of payment to Xy tender to Xwas as good as payment.^ This is perhaps as far as the classical law went, except in manumissions, but there are texts (which may, however, be interpolated) which indicate, at least in connexion with wills, that in
1 There is in this last passage a peculiarity of language which is found in many other places. To say that a condition is void is to say that it is ineffectual, but this passage says that though the condition is void it vitiates the gift: in other words it is not void. It is a valid and effective condition, though if it had been a promise it would not be enforced. Jarman, Wills (8th ed. pp. 145 7,145 8), observes on the difference between land and personalty and says, in regard to the latter, that equity has adopted the Roman rule, that where a suspensive condition is impossible or illegal as malum prohibitum, the gift is absolute. But 'where the performance of the condition is the sole motive of the bequest, or its impossibility was unknown to the testator... or where it is illegal as involving malum inse, in these cases the civil agrees with the common law in holding both gift and condition void'. This is no doubt correct in effect, the civil law being the modern civil law. But it is clear that in these cases the condition is not void but operative. So, on p. 1454: 'A condition which is impossible ab initio is void, such as a condition that a man shall go to Rome in an impossibly short space of time.' As the writer cites Sheppard's Touchstone (p. 132) in support, he presumably agrees with Sheppard who says: 'if the condition be subsequent to the estate the condition only is void and the estate good and absolute', by which he means the original estate, not the one which is to arise if the condition is satisfied, 'and if the condition be precedent the condition and the estate are both void': that is, the condition is not void, but operative. So in Coke on Littleton (206 b) this is expressed in words which speak of the impossible condition as void, when the context shows that the condition is valid and prevents the estate from arising. It cannot be said that the writers treat the condition and the estate as one conception, for they'distinguish them. They cannot mean that it is void in the sense that satisfying it will bring the gift into effect, for they are dealing largely with impossible conditions.
2 D. 50. 17. 161. |
3 D. 28. 7. 3. |
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such a case the condition was regarded as fulfilled if the failure to fulfil it was not imputable to the beneficiary himself.1 There is some evidence for the application of similar principles inter vivosy e.g. where A sold B a library provided the local authority sold B a site on which to store it. They were willing to do so, but B did not buy it. It was held that the sale was good, fulfilment having been prevented by B? The case is inadequately stated: it would seem that there must have been more precision in the condition than appears in the actual wording. With us too, prevention of performance of a condition, arising from an act for which the obligee is responsible, has the effect of releasing the obligor; such an act is * equal to performance';3 in wills the question of prevention of performance by one interested in non-performance does not seem to have arisen, but it would probably be equivalent to performance.
There are a few texts in relation to stipulatio for a penalty if a certain thing is not done, which treat the penalty as not due where casus fortuitus had prevented the performance,4 but on a general view of the texts the better opinion seems to be that even under Justinian there was no general principle that casus or act of God preventing performance of the condition was treated as equivalent to performance. It must be noted that this applies only to pure conditions. If, e.g., I informally promise you money if you render me a certain service and you undertake to do it but casus prevents this, there is a contract of hire of service under which you have no claim unless you have rendered the service.5 It is practically only in stipulatio that the point could arise.
1 D. 28 . 7 . ii;35 . i . i4;se e Grosso, Contributo allo studio delP adempimento: Lafinzione di ademfimento nella condizione.
2D. 18. 1. 50; see also D. 50. 17. 161.
3Ashurst J. in Hotham v. East India Co. (1787), 1 T.R. 638, 645; Comyn's Digest, Condition L 6; Halsbury, vol. 8, sect. 338.
4 D. 45. 1. 69. |
5 D. 19. 2. 15. 6. |
254 OBLIGATIONS: GENERAL
In considering our law of contract we must leave out of account two things which are called conditions in our books:
(i) conditions which are also promises to do something, vital to the contract, failure to do which is a breach of contract, entitling the other party to treat the contract as discharged; they are in actual life the most important
*conditions', but they are really terms in the contract and bring in considerations wholly alien to the present topic; they were not conditions in Roman law, which had no general doctrine of discharge by breach ;*
(ii)representations of existing fact sometimes called conditions, e.g. in Bannerman v. White? which are not really conditions at all in the Roman sense, since there is no uncertainty or futurity about them but only allegations, true or false, of a certain existing state of facts. They again are really terms in the contract and cannot in any case raise the questions we are considering.
In an ordinary contract under a true condition precedent or suspensive, not amounting to a promise, for instance, when a student engages lodgings in a university town conditionally upon passing his entrance examination, it seems that in our law (though authority on such things is extraordinarily scanty) the chief, if not the only, effect of the existence of the condition is to hold up any possibility of enforcement of the contract until the condition is satisfied. Thus when an insurance policy provided that upon the occurrence of a loss the person insured must
*procure a certificate of the minister churchwardens and some reputable householders of the parish, importing that they knew the character, etc., of the assured', which he
failed to do, that was a condition precedent to his right to recover upon the policy and his action failed.3
1But the seller could by inserting a lex commissoria bargain for the right to treat the sale as discharged for failure to pay the price. D. 18. 3.
2(1861), 10 C.B.N.S. 84.
3Worsley v. Wood (1796), 6 T.R. 710.
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Roman law dealt with, or created, some problems in connexion with conditional obligations which do not appear, at least obviously, in our law. Obligation was originally conceived of as a personal subjection. But a person who is to be in a state of subjection if some event happens is not as yet so, and cannot be said to be, in the old sense, obligates^ and though the notion of subjection is gone in classical law it has left certain traces. Thus though it was clear that one who had promised under condition had no right to withdraw, there is evidence of doubt whether it could strictly be said to be an obligation so long as the condition was outstanding. In the beginning a persona obligata was analogous to a res obligata^ a thing pledged, with the obvious corollary that the relation was intensely personal, so that, at one time, it is not impossible that it died with the person bound. As a general principle this rule, if indeed it ever existed, is gone long before classical times, but it may have left a surviving trace in the doctrine that it was inadmissible for an obligation to begin in the heres—'inelegans esse visum est ab heredis persona incipere obligationem'.1 A heres cannot inherit an obligation which could not have affected his ancestor. We are told this in relation to promises expressed to bind or benefit the heres alone, but it is equally applicable to conditional obligations if these are not perfected obligations. It is well known that conditional institutiones and legacies failed if the beneficiary died before the condition was satisfied, and there is some evidence that in classical law this may have been true of contract under condition.2 But the notion is obsolete before Justinian. Similarly there are signs of dispute on the question, in classical law, whether there could be conditions on a consensual contract,* i.e. whether there could be said to be any effective consent at
1G. 3. 100.
2For references to the literature on this question see Buckland, Text-
book, p. 425, n. 1. |
3 G. 3. 146; C. 4. 37. 6. |