!!Экзамен зачет 2023 год / The Law of Obligations

have been enough of a challenge for future generations of lawyers, to whom the contrast between ius civile and ius honorarium no longer mattered. Their task, however, was further complicated by the fact that terms such as "actio", "exceptio" and "in integrum restitutio" changed their meaning in post-classical times.23 This was the inevitable consequence of the amalgamation of ius honorarium and ius civile and of the replacement of the formulary procedure of classical law by the imperial cognitio extra ordinem. Thus, for instance, the distinction between invalidity ipso iure and per exceptionem had lost any procedural significance and was consequently disregarded. Justinian, on the one hand (as usual), attempted to preserve the rules and concepts of classical substantive law; yet, on the other hand, he could not, of course, revive the procedural framework within which these rules had once been developed. This was bound to introduce an additional element of inconsistency into our sources. While, therefore, the term "exceptio" continued to be used, it had lost its characteristic classical contours. Justinian himself occasionally referred to invalidity where classical lawyers would have granted an exceptio, and as a result the difference between void and voidable was largely lost.24

(e) Pandectist doctrine

Only 19th-century pandectism eventually managed to establish some conceptual clarity.25 Invalidity ("Ungiiltigkeit") came to be accepted as the general, overall term, comprising (inter alia) ipso iure nullity ("Nichtigkeit") and various forms of annulment of a legal act, either by a court of law or by the aggrieved party and, in the latter instance, either by raising an exceptio or by way of a declaration of rescission ("Anfechtung").26 Within the BGB, the concept of rescission was linked to that of nullity, in that the effect of rescission was described in the following way: "If a legal transaction, which is liable to be rescinded, is rescinded, it is deemed to have been null and void from the outset"27 (the ex tune effect of the declaration of rescission). "Null and void" was interpreted, throughout the 19th century, in a quasi-naturalistic manner as absolutely and in every respect ineffective.28 Today there is a

23Kaser, RPr II, pp. 65 sqq., 92 sq.

24Kaser, RPr II, p. 93.

25Cf. e.g. Windschcid/Kipp, § 82; cf. further Heinz Hiibner, "Zum Abbau von Nichtigkeitsvorschriften", in: Festschrift jiir Franz Wieacker (1978), pp. 399 sqq. (also on the attempts by the natural lawyers to systematize the law in this regard on a rational basis). For the development of the principles of nullity in English law cf. Roberta Routledge. "The interaction of social and theoretical considerations in the development of the principle of

nullity of contract in English law", in: La formazione storica, vol. Il l, pp. 1249 sqq.

26On rescission cf. supra, p. 615. note 192.

27§ 142 I; but cf. still § 112 of the E I.

2И Thus, for instance, it was deemed conceptually impossible to allow rescission of a transaction which was already null and void. This can, however, occasionally be desirable; for details cf. Theodor Kipp, "Ober Doppelwirkungen im Recht. insbesondere ubcr die Konkurrenz von Nichtigkeit und Anfechtbarkeit". in: Festschrift fur Ferdinand von Martitz

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tendency to try to regain a greater degree of flexibility and to escape the dogmatic and conceptual rigidity of the BGB.29 Thus, for instance, it has been argued that under certain circumstances a transaction should not be regarded as absolutely void but only as relatively so: void against the one party but not against the other.30 Even more notable has been the trend, in recent years, to restrict the invalidity of usurious transactions. Where a contract is contra bonos mores (and thus, according to § 138 BGB, "null and void") on account of an obvious disproportion between performance and counterperformance, courts have occasionally cut down the imbalance and upheld the contract in an acceptable, modified form.31 This kind of judicial interference in, and reshaping of, contractual relationships occurs, to my mind, contra legem; nor is it necessitated by valid policy considerations.32

2. Convalescence; partial invalidity

Invalidity is normally a final verdict on the fate of a transaction. What is deficient in the beginning cannot become valid merely by the lapse of time.33 There are, however, situations, where an—originally—invalid transaction is allowed to "convalesce". In modern law one can think of provisions, according to which a contract for the alienation of land, concluded without observance of the prescribed form, becomes valid it transfer and registration in the Land Register have taken place.34 Likewise, the disposition of a non-owner over somebody else's property is invalid unless the owner has consented. The disposition becomes valid, however, if the owner (subsequently) ratifies it, or if the non-owner acquires the object.35 This phenomenon of a "convalescence" occurs repeatedly in our Roman law sources. We have already come across a variety of examples. The rule of "morte Cincia removetur" falls into this category,36 as does the idea that prohibited

(1911), pp. 211 sqq. In this article Kipp develops his famous theory of what he calls "double-effects" in the law. But cf. also Bernd Ocllers, "Doppclwirkungen im Recht",

(1969) 169 Archil' fur die civilistische Praxis 67 sqq.

24 Сf. generally Hubner, Festschrift Wieacker, pp. 399 sqq.; cf. also his comparative observations on p. 402.

3(1 Ulrich Hubner, "Personale Relativierung der Unwirksamkeit von Rechtsgeschaften nach dem Schutzzweck der Norm", in: Festschrift fur Heinz Hubner (1984), pp. 487 sqq.

31Cf. e.g. Thco Мзуег-Maly, in: Miinchener Komtnentar, vol. 1 (2nd ed., 1984), § 138, nn. 134 sqq.

32For details, see Zimmermann, Moderationsrecht, passim; contra: Johannes Hager,

Gesetzesund sittenkonforme Aufrechterhaltung von Rechtsgeschaften (1983); Alfons Biirge, Rechtsdogmatik und Wirtschaft (1987); Manfred Lieb, in: Miinchener Komtnentar, vol. II, 3 (2nd ed., 1986), § 817, n. 17.

33Paul. D. 50, 17, 29: "Quod initio vitiosum est, non potest tractu temporis

convalescere."

34§ 313, 2 BGB.

35§ 185 II BGB. For details, see Filippo Ranieri, Alienatio convalescit (1974), pp. 36 sqq.,

51 sqq.

3fi Cf. supra, p. 484.

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donations between spouses became valid with the death of the donor.37 The exceptio senatus consulti Macedoniani, too, was removed (and the mutuum thus effectively validated) if the paterfamilias or the son (after he had ceased to be alieni iuris) ratified the loan.38 Generally speaking, we are dealing here with situations where the obstacle to the validity of the transaction subsequently falls away.

Two further escape routes from the harshness connected with the complete and final invalidity of legal transactions were paved by the Roman lawyers. The one may be summed up in the maxim "utile per inutile non vitiatur":39 if only part of a transaction was invalid, the rest of it, as a rule, remained unaffected. Attention has already been drawn to the very flexible manner in which this problem was approached.40 "Utile per inutile non vitiatur" was adopted by the Swiss41 and Austrian42 codes, whereas the BGB has opted, in case of doubt, for the invalidity of the whole transaction.43 Today, a tendency prevails to return to the Roman maxim.44

3.Conversion

(a)Traductio unius negotii in alterum (ius commune)

The other device is usually referred to as "conversion" (re-interpreta- tion). The modern term goes back to a dissertatio iuridica inauguralis "de eo, quod iustum est, circa conversionem actuum negotiorumque iuridicorum iamiam peractorum" by the German scholar Christian Ferdinand Harpprecht, written in 1747.45 In this inaugural dissertation he defined conversio as "traductio vel commutatio unius negotii in alterum pro obtinendo et salvando fine necessaria, actui et intentioni agentis conformis":46 a transformation of one legal act into another, which is necessary in order to achieve and to save the aim of the transaction and which is in accordance with both the action and the intention of the acting party. This concept of "conversio" is based, interestingly, on the transsubstantiation doctrine of the Catholic Church, as laid down in the 4th Chapter of the Decretum de Eucharistia by the Council of Trent (1545-61):

". . . per consecrationem panis et vim conversionem fieri totius substantiae panis in substantiam corporis Christi Domini nostri, ct totius substantiae vini in substantiam sanguinis eius. Quae conversio convenicnter et proprie a sancta catholica Ecclesia transsubstantiatio est appcllata."47

45Cf. Christoph Krampe, Die Kanversion des Rechtsqeschafts (1980), pp. 28 sqq.

46At p. 8.

47For details, see Krampe, op. cic, note 45, pp. 36 sqq.

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In the course of the 19th century the conversio actus iuridici became a generally accepted device for upholding invalid legal transactions in another form,48 and was taken over into several of the modern codifications.49 Thus, for instance, the BGB (§ 140) determines that if an invalid legal transaction satisfies the requirements of another legal transaction, the latter is effective, provided that it is covered by the hypothetical intention of the parties.50 It is obvious that conversion and interpretation are very closely related to each other; in fact, it has been argued that we are not dealing here with distinct and separable legal techniques, but with a problem of (re-)interpretation (so that, ultimately, special rules such as § 140 BGB would be redundant when viewed against the general rules of interpretation).51 Whether or not this view can be accepted as correct depends, of course, on how far one is prepared to take the notion of interpretation52 and on how one perceives what actually takes place in the process of the "conversion" of a legal act: is there really a transformation (as Harpprecht would have it) from one thing into another, i.e. a judicial remodelling of the transaction, or does the judge, by uncovering a hidden side contained in it, uphold the act as it is, but from a different perspective?53

(b) Conversion in Roman law?

The Roman lawyers, as may be expected, did not bother with these subtle dogmatic distinctions. Nevertheless, they provided the casuistic basis for the modern doctrines. For, although they neither developed a specific set of rules nor knew the term "conversio", the problem was well known to them. The Digest contains a variety of situations, where ineffective legal acts are upheld by way of (as we would call it) conversion.54 The best-known example is the one discussed in

Krampe, op. cit., note 45, pp. 83 sqq.; Giuseppe Gandolfi, "La nozione pandcttistica di 'conversione' a] vaglio della giurisprudenza tedesca dell' ottoccnto", in: Sodalitas, Scritli in otwre di Antonio Guarino, vol. VIII (1984), pp. 4053 sqq.

4'' Krampe, op. cit., note 45, pp. 123 sqq.; Giuseppe Gandolfi, "II concetto moderno di 'conversione' e la sua genesi legislativa", in: Studi in otiore di Amaldo Biscardi, vol. II (1982), PP. 551 sqq.

For details cf, e.g., Mayer-Maly, op. cit., note 31, § 140, nn. 1 sqq.; Hager. op. cit., note 32, pp. 115 sqq., 154 sqq.; Giuseppe Gandolfi, "Introduzione allo studio del concetto legislativo di 'conversione'", in: Studi in on ore di Cesare Sanfilippo, vol. VI (1985), pp. 319 sqg.; idem. La conversione deli' atto invulido, II model to gennanico (1984), pp. 101 sqq., 145 sqq.

э1 Krampe, op. cit., note 45, pp. 286 sqq.

52 Cf. e.g. Seiler, (1984) 184 Archil' fiir die civilistischt Praxis 186 sq. In this respect the problem of what is usually referred to as "ergdnzende Vertragsauslegiing" is of particular relevance. May the courts fill gaps in the contractual arrangements on the basis of the hypothetical will of the parties (and thus do for the individuals "what they would have done for themselves, if their imagination had anticipated the march of nature": Jeremy Bentham, "A General View of a Complete Code of Laws", in: John Bowring (ed.) Works (1843), vol. Ill, p. 191) or do they have to stick to their real intention? Cf. generally Alexander Liideritz, Austeyuno von Rechtsqeschqften (1966), pp. 386 sqq., 392 sqq.; Flume, AT, pp. 321 sqq.

" Windscheid/Kipp, §82, 5.

34 CC. generally Vincenzo Giuffre". L'utitizzazione degli atti gittridid tnediante 'conversione' in diritto romano (1965), pp. 107 sqq.

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D. 29, 1, 3.55 Here a soldier had intended to make a will "communi iure", but he died before the document had been duly signed by the required number of witnesses. Under the general rules of the ius civile, a regular testamentum per aes et libram could not have come into existence under these circumstances. According to Ulpian, the testator's act is, however, valid as a soldier's will (testamentum militis), which was exempt from all formalities. But the desire to uphold invalid legal acts under different auspices was not confined to the law of testamentary dispositions.56 In the field of contract we have, for instance, Ulp. D. 46, 4, 8 pr.: "An inutilis acceptilatio utile habeat pactum, quaeritur: et nisi in hoc quoque contra sensum est, habet pactum."57 Acceptilatio was a transaction by which a debtor could be formally released from his obligations under a contract verbis.58 It was actus contrarius to the stipulation of classical law59 and subject to the same formal requirements. "Quod ego tibi promisi, habesne acceptum?"6U was the question of the promisor, whereupon the stipulator had to answer "Habeo". If it did not comply with these formalities, the acceptilatio was invalid. The question arose, therefore, whether the transaction could not be seen as containing an informal pactum de non petendo, which would at least allow the debtor to defend himself against his creditor's claim by way of raising an exceptio pacti. Ulpian's answer is in the affirmative and this appears, indeed, to be a sensible solution, in view of what both parties had primarily intended. After all, by the time of classical law even formal acts such as stipulations (or acceptilationes) had to be founded on an agreement between the parties.61 Thus, "inutilis acceptilatio utile habet pactum" was based, essentially, on a (re-) interpretation of the contract according to the principle of "id quod actum est'1;62 hence the limitation contained in the "nisi in hoc" clause, hence also, particularly, the statement of Paulus in D. 2, 14, 27, 9: "Si acceptilatio inutilis fuit, tacita pactione id actum videtur, ne peteretur." Since a formal release had failed, the parties could be taken to have intended a pactum taciturn63 (de non petendo).

55Giuffre, op. cit., note 54, pp. 175 sqq.; Krampe, op. cit., note 45, pp. 64 sqq.

56Cf. Giuffre", op. cit., note 54, pp. 207 sqq.

57On this text cf. in particular Christoph Krampe, "An inutilis acceptilacio utile habeat pactum, quaeritur—D. 46, 4, 8 pr. (Ulp. 48 Sab.)", (1985) 53 TR 3 sqq.

58Kascr, RPr I, p. 641; Honsell/Mayer-Maly/Selb, p. 265; Alan Watson, "The Form and Nature of'acceptilatio' in Classical Roman Law", (1961) 8 RIDA 391 sqq.: cf. also infra, pp. 755, 756.

59Knutel, Contrarius consensus, p. 9; idem, "Zum Pnnzip der formalen Korrespondenz im romischen Recht", (1971) 88 ZSS 87 sqq.; Detlef Liebs, "Contrarius actus, Zur Entstehung des romischen Erlassvertrags", in: Sympotica Franz Wieacker (1970), pp. 131 sqq.

60Gai. Ill, 169.

61Cf. supra, pp. 510 sq., 565, 627 sq.

62Krampe, (1985) 53 TR 16 sqq.

63For details, see Andreas Wacke, "Zur Lehre vom pactum taciturn und zur Aushilfsfunktion der exceptio doli". (1973) 90 ZSS 220 sqq., 254 sqq.

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(c) Paul. D. 38, 1, 39 pr.

But there are other decisions where an invalid transaction was upheld without specific reference to id quod actum est and where it therefore remains a matter of speculation whether the Roman lawyers themselves viewed this kind of operation as a question of interpretation or of conversion in the modern sense. Paulus D. 38, 1, 39 pr. is a case in point.64 According to the lex Aelia Sentia, patrons were not allowed to bind their freedmen to pay money rather than to render services;65 such promises were regarded as an objectionable restriction of the freedman's liberty. The patron was, however, able to obtain a stipulation in the alternative ("certum operas aut in singulas HS quina milia dari?")/'6 for here the freedman could avoid payment of the promised sum by rendering the services. But what about a stipulation such as "si decem dierum operas non dederis, viginti nummos dare spondes?" We are dealing here with a non-genuine penalty clause: the freedman has promised the money, albeit only in case he does not provide ten days' work. The work as such has not been stipulated for; it is merely in condicione. Strictly speaking, therefore, the transaction is invalid. Effectively, however, the stipulatio poenae gave the libertus the same option as the alternative stipulation: provided he did the work, he did not have to pay. Hence the attempt to save the transaction, expressed in the following words:

". . . an vero opcrae dumtaxat promissae fingi debeant, ne patronus omnimodo excludatur? et hoc praetor quoque sentit operas dumtaxat promissas."67

All in all, it must be obvious that the Roman lawyers displayed considerable ingenuity in avoiding a verdict of complete and final invalidity and thereby helping the parties to achieve the ends they had intended to achieve with their transaction. Of course, these ends in themselves had to be legal, moral and attainable.

The last sentence leads us on to consider the reasons for the invalidity of a contract; it refers to the three most important and general ones: illegality, immorality and impossibility of performance.

II.INITIAL IMPOSSIBILITY

1.Impossibilium mil la obligatio est

"A contract, the performance of which is impossible, is void" states the BGB in its § 306, with characteristic precision and uncharacteristic

64On this text, see Kniitel, Stipulatio poenae, pp. 76 sq.

65Ter. Cl. D. 40, 9, 32, 1; Iul. D. 38, 1, 25; Pierre Jauberl, "La Lex Aelia Sentia et la locatio conductio des operae liberti", (1965) 43 RH 5 sqq.

66Cf. Paul. D. 37, 14, 6, 1; Ter. Cl. D. 40, 9, 32, 2.

67Paul. D. 38, 1, 39 pr.

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dash. Iuventius Celsus himself, well known for his succinct and trenchant style/'8 could hardly have faulted the German version of the famous principle that has come down to us under his name: "Impossibilium nulla obligatio est."69 It thus appears to be a rule, not only of venerable antiquity, but also of obvious and even axiomatic validity. It is echoed in other modern legal systems70 and corresponds to the maxim "ought implies can" of modern moral philosophy.71 If we oblige somebody to do something, we presuppose in fact that he is able to do this act; anything else would be a kind of buffoonery ("lusisse tantum, et nihil egisse cense[m]ur" in the words of Pufendorf).72 Impossibilium nulla obligatio est neatly encapsulates the idea that nobody can be obliged to perform what he cannot perform. But this is not identical to the assertion that a contract aimed at an impossible performance is bound to be void: at least in the eyes of the Roman lawyers, the one did not necessarily follow from the other. What, then, was the effect of impossibility of performance on the contractual relationship between two parties in Roman law?

2. The concept of impossibility

Before we answer this question, we must first of all attempt to define more precisely what is meant by "impossibility" in the present context. First of all, and most importantly, our discussion in this chapter refers only to initial (as opposed to supervening) impossibility. What matters is whether at the time of conclusion of the contract performance was impossible or not. Apart from that, "impossibilium nulla obligatio est" covered only cases in which performance was objectively impossible;73 if somebody had promised what he could not, but another person could in fact perform, the obligatio was not "nulla": "Si ab eo stipulatus sim, qui efficere non possit, cum alio possibile sit, iure factam obligationem

68 Cf. e.g. Franz Wieacker, "Amoenitates Iuventianae", (1962) 13 lura 1 sqq.; Mario Bretone, "Note minime su Celsus films", (1963) 9 Labeo 331 sqq. m D. 50, 17, 185.

70 Cf. e.g. Peters, Flamman & Co. v. Kokstad Municipality 1919 AD 427 at 434: "By the

Civil Law a contract is void if at the time of its inception its performance is impossible: impossibilium nulla obligatio (D. 50, 17, 185)"; De Wet en Yeats, pp. 76 sqq.; Joubert, Contract, p. 124. The rule is used in an entirely different context in Montsisi v. Minister of Police 1984 (1) SA 619 (A) at 635A-638G (per Rabie CJ); c(. the discussion by Derek van der Merwe, "Regulae iuris and the axiomatization of the law in the sixteenth and seventeenth centuries", 1987 TSAR 300 sqq.

71 Joachim Hruschka, "Zwei Axiome des Rechtsdenkens", in: Aus dem Hamburger

Rechtsteben, Festschrift fur Walter Reimers (1979), pp. 459 sqq.

72Dejure naturae et gentium. Lib. Ill, Cap. VII, § 2; cf. Hruschka, Festschrift Reimers, p. 461.

73The same still applies to § 306 BGB; cf. § 275 II BGB e contrario. For South Africa cf. De Wet en Yeats, pp. 76 sq.; Joubert, Contract, pp. 124 sqq. As to the terminology ("subjective" and "objective" impossibility), c(. F. Mommsen, Unntoglichkeit, p. 5; Windscheid/Kipp, § 264, 1. Others (as, for instance, Savigny) had referred to absolute and relative impossibility.

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Sabinus scribit."74 Objective initial impossibility therefore comprised a large variety of situations: cases where the object of the contract cannot exist at all (the stipulation of a hippocentaurus),75 where the object was no longer in rerum natura (the promise to deliver a slave who was already dead,76 the sale of a house that had completely burnt down77 or of an olive grove that had been devastated by a storm)78 or where it was extra commercium (the sale of a res sacra or religiosa,7y or of the campus Martius).80 Transfer of ownership was also objectively impossible where the slave who had been stipulated for already belonged to the creditor81 or turned out to be a homo liber.82 If, on the other hand, what had been sold or promised did not belong to the vendor (or promisor) but to a third party, the obligation remained in any event unaffected: performance was not objectively impossible. In the case of a contract of sale, as we have seen, the vendor did not even have to transfer ownership, but merely vacua possessio; if he was evicted, the purchaser could bring the actio empti.83 Finally, impossibilium nulla obligatio est could not be invoked where performance was merely difficult (as opposed to objectively impossible). The Roman lawyers drew a fine distinction between impedimentum naturale and facultas dandi: the latter, as they saw it, was a question of personal convenience or inconvenience, but did not affect the content of the promise. Hence the general rule that "causa difficultatis ad incommodum promissoris, non ad impedimentum stipulatoris pertinet".84 Performance was therefore not (objectively) impossible if the debtor had no money and was unable to find a lender or if the slave whom he was supposed to hand over in Rome was in fact in Ephesos.85 What if the slave who had been sold turned out to be in the hands of the enemy?

". . . Octavenus magis putabat valere emptioncm et stipulationem, . . . potius enim difficultatem in praestando со incsse, quam in natura, etiamsi officio iudicis sustinenda esset eius pracstatio, donee praestari possit. "Wf>

74 Vcn. D. 45, 1, 137, 5; Dieter Mcdicus, "Zur Funktion der Leistungsunmoglichkeit im romischen Recht", (1969) 86 ZSS 83 sqq.

75Gai. III. 97 a; Лиг. Ill, 19, 1.

76Gai. Ill, 97; Inst. HI, 19, 1.

77Paul. D. 18, 1, 57 (with a detailed discussion about what happens when part of the house remains standing); Frank Peters, "Zur dogmatisehen Einordnung der anfanglichen, objektiven Unmoglichkeit bcim Kauf", in: Festschrift fur Max Kaser (1976), pp. 289 sqq.; Arp, Ап[апфске Umnoglichkeit, pp. 107 sqq.

^Pap. D. 18, 1, 58*

7'} Pomp., Paul., Cels./Pomp. O. 18, 1, 4-6 pr.; Mod. D. 18, 1, 62, 1; Inst. Ill, 23, 5. 8(1 Cels./Pomp. D. 18, 1, 6 pr.

81Gai. D. 44. 7, 1, 10; Gai. Ill, 99; Ulp. D. 45, 1, 82 pr.; Inst. Ill, 19, 2 and 22.

82Gai. D. 44, 7, 1, 9; Gai. III. 97; Paul. D. 45, 1, 83, 5; Mod. D. 45, 1, 103; Inst. Ill, 19, 2.

N3 Cf. supra, pp. 293 sqq., 296 sqq.

84Ven. D. 45. I, 137, 4.

85Cf. Ven. D. 45. 1, 137. 4.

''Pomp. D. 19, 1, 55. In place of "in natura" one probably has to read "quam eum non esse in rerum natura" (Mommsen). On the problem of slaves in hostium postestate and impossibility cf. further Paul. D. 46, 3, 98, 8 and Medicus. (1969) 86 ZSS 87 sqq.

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On the borderline, too, was a stipulation, made in Rome "hodie Carthagine dare spondes?"87 Ships could sail fast, but to cover the distance from Rome to Carthage within less than 24 hours was not only difficult, but impossible. Hence, as a rule, such a stipulation was said to depend on impossibilem causam. Likewise, Justinian regarded as impossible the promise by a person on his deathbed to build a house.8H

3. Initial impossibility of stipulations

All the examples mentioned so far refer either to stipulation or to consensual sale. Impossibilium nulla obligatio est does not seem to have been discussed with regard to other contracts; as far as contractus re were concerned, such a discussion would, of course, have been a logical impossibility in any event, since they came into existence only with the handing over of the object. Dealing with the consequences of initial objective impossibility of contracts in Roman law, we must therefore distinguish between sale and stipulation. Only to the latter would a rule such as that contained in § 306 BGB have applied without qualification: "si id quod dari stipulamur tale sit, ut dari non possit, inutilis est stipulatio."89

The stipulation was invalid. No explanation is given for the result, and thus one is left to speculate. The stipulation was a contract stricti iuris, and the appropriate action was the condictio (certae rei). "Si paret Nm Nm A° A" hominem Stichum dare oportere, quanti ea rest est, tantam pecuniam iudex Nm Nm A° A° condemnato, si non paret, absolvito" was its formula. Condemnation, therefore, presupposed "that it appears that the plaintiff has to give the slave Stichus to the defendant". But how could this "appear" to be the case if the slave had ceased to exist at the time when the contract was concluded? To postulate a "dare oportere" under these circumstances was obviously not considered to be possible.90 Apart from that, a second prerequisite for condemnation was that the defendant's (object of) performance was capable of being evaluated in monetary terms ("quanti ea res est, tantam pecuniam"). In most, if not in all, cases of initial objective impossibility, an object of which the value could sensibly be estimated, was, however, lacking; for what is the value of a hippocentaurus, of a

M7 Gai. П. 45, 1, 141, 4; Inst. HI, 15, 5. Cf, also Ulp. D. 13. 4, 2, 6; Medicus, (1969) 86

ZSS 86 sq.; Arp, AnfatigHche Unmaglichkeit, pp. 77 sq., 86.

8H C. 8, 37, 15: "Si quis spopondcrat insulam, cum moriebatur, acdificare stipulatori, impossibilis videbatur huiusmodi stipulatio."

Gai. Ill, 97; sec further Wollschlager, Unmoglichkeitslehre. pp. 8 sqq.; Arp, Anfangliche Unmoglichkeit, pp. 66 sqq. (according to whom nullity is the natural and logical consequence ("sachtogisch richtige Rechtsfolge". p. 88) of impossibility of performance of a unilateral promise such as a stipulation; but see also e.g. pp. 100 sq.)

90 Cf e.g. Franz Wieacker, "Leistungshandlung und Leistungserfolg im burgerlichen Schuldrecht", in: Festschrift fiir Hans Carl Nipperdey, vol. I (1965), pp. 801 sq.; Wollschlager,

Unmoglichkeitslehre, pp. 10 sq.; but see Arp, Anfangliche Unmoglichkeit, pp. 97 sqq.

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res extra commercium or of the corpse of a slave whom the parties had intended to transfer alive?91

4. Initial impossibility and contracts of sale

Contracts of sale, on the other hand, gave rise to bonae fidei iudicia where such problems did not occur. The judge was neither asked to estimate "quanti ea res est" nor was he hemmed in by an awkward and narrow wording of the formula's intentio. He was invested with a broad discretion, for under the actiones empti and venditi he was instructed to condemn in "quidquid ob earn rem Nm Nm A° A° dare facere oportet ex fide bona".92 As a result, the consequences of initial objective impossibility were determined with much greater flexibility than in the case of stipulations.93 True: in many of our sources the sale is said to be invalid: " . . . si . . . corpus . . . in rerum natura ante venditionem esse desierit, nulla emptio est", said Paulus;94 Nerva, Sabinus and Cassius are reported to have opined "nihil venisse" (and to have granted an unjustified enrichment claim to the purchaser if he had already paid the purchase price)95 where the object of the sale had burnt down,96 and Modestinus declared "emptio non teneat" in cases of a sale of sacred, religious or public land.97 But we know by now that these pronouncements sound much more clear-cut and technical to us than they were intended by the Roman lawyers. Modestinus, in fact, in the very same sentence, goes on to grant the actio empti to the disappointed purchaser—despite the fact that the sale was "invalid". In other cases of objective initial impossibility, the actio empti was available too: "Si sterilis ancilla sit, cuius partus venit, . . . cum id emptor ignoraverit, ex empto tenetur venditor."98 The sale of a liber homo as a slave was also valid provided that the purchaser did not know about the true status of the person involved.99 Only where the object of the sale had been destroyed or had otherwise perished before the conclusion of the sale does the question of contractual liability never seem to have been discussed.100 Thus, the only thing one can safely state in a more general

91 For this line of argument, see Medicus, (1969) 86 ZSS 69 sqq. Contra: Arp, Anfangliche Unmoglichkeit, p. 100; he maintains that the stipulation was inutilis because of (and in so far as there was) a divergence between the content of the promise and the reality, on account of which the promise appeared to make no sense, to be absurd, and in this sense: to be impossible (pp. 86 sqq.; on the meaning of the term "impossibilis" cf. pp. 78 sqq.)

* Cf supra, p. 277.

93 Cf., in particular, Wollschlager, Unmoglichkeitslehre, pp. 11 sqq.; Peters, Festschrift Kaser, pp. 285 sqq.; Arp, Anfangliche Unmoglichkeit, pp. 101 sqq.

94D. 18, 1, 15 pr.

95We also find the condictio (indebiti) in Paul. D. 18, 4, 7.

96Paul. D. 18, 1, 57.

97D. 18, 1, 62, 1.

98Paul. D. 19, 1, 21 pr.

99Lie. Ruf D. 18, 1, 70. For further details cf. supra, p. 242.

100 por an attempt to rationalize and justify this differentiation, cf. Arp, Anfangliche Unmoglichkeit, pp. 106 sqq.: the sale of an object that did no longer exist was invalid because,

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