!!Экзамен зачет 2023 год / The Law of Obligations

he had complied with these rather cranky demands of the testator. Stipulations as well as consensual contracts, on the other hand, were rendered invalid (in toto) on account of immoral or illegal conditions attached to them.

3. Casus perplexus

Occasionally a condition attached to a will was apt to lead to a puzzling logical stalemate when one tried to figure out its legal implications—as, for example, where a testator had provided "Stichus liber esto et, posteaquam liber erit, heres esto".33 Stichus was to become free and once he was free, he was to become heir. Thus, according to the wording of the will, Stichus' institution as heir depended on his having been released from slavery. Such a release could, however, be effected only by someone who had succeeded the testator as his heir; and that, in terms of the will, could only be Stichus himself. The Roman jurists went to great lengths to save these kinds of dispositions.34 In the present case, for instance, which appears to have been eagerly discussed,35 Labeo, Neratius und Aristo cut the Gordian knot by arguing that "detracto verbo medio 'postea' simul ei et libertatem et hereditatem competere":36 both freedom and the inheritance must be taken to be granted to him at one and the same time. Thus, Stichus can be regarded, for one logical second, alternatively as the heir, from whom he obtains his own liberty, and as the homo liber who may succeed the testator.37 In other situations, however, one had to abandon all hope of finding a sensible solution to the conundrum and the disposition had to be declared invalid as a result of insurmountable perplexity. Marcianus D. 28, 7, 16 provides a somewhat silly but nevertheless rather instructive example: "Si Titius heres erit, Seius heres esto: si Seius heres erit, Titius heres esto"—the testator must have been either very confused or very malicious when he made Titius' institution as heir dependent upon that of Seius, and vice versa. "Iulianus inutilem esse institutionem scribit", we are, not surprisingly, informed, "cum condicio existere non possit."38 Closely related is the case of the "preposterous" stipulation as discussed in Inst, III, 19, 14: "Item si quis ita stipulatus erat: si navis ex Asia venerit, hodie dare spondes? inutilis erat stipulatio, quia praepostere concepta est." In

33Ulp. D. 28, 5, 9, 14.

34 Cf. further, as far as the conditional institution of an heir is concerned, Lab. D. 28, 7, 20, 1; Iut./Ulp. D. 28, 7, 4, 1; Lab. D. 28, 7, 20 pr. For a detailed analysis, see Ralph Backhaus,

Casus perpiexus: die Lasting in sich widerspriichlkher Rechtsfalte durch die klassische romische Jurisprudenz (1981), pp. 32 sqq.

Зэ The same problem is raised in Marc. D. 28, 5, 52.

36Ulp. D. 28, 5, 9, 14.

37Franz Wieackcr, "Die juristische Sckunde. Zur Legitimation der Konstruktionsjurisprudenz", in: Existenz undOrdnung, Festschrift fur Erik Wolf'(1962), p. 431; Backhaus, op. cit.,

note 34, pp. 41 sqq. (43).

3R Marc. D. 28, 7, 16; cf. further Backhaus, op. cit., note 34, pp. 50 sqq.

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terms of this odd provision performance is, on the one hand, due immediately ("hodie"); yet, on the other hand, the operation of the obligation is suspended until "the ship arrives from Asia". Performance, in other words, is supposed to be due before the obligation has come into existence.39 This is logically impossible and the whole transaction must therefore be considered invalid. It has to be noted, however, that Justinian uses the past tense when relating this solution. The reason is that, as a result of an imperial ruling, stipulationes praeposterae had, in the meantime, become recognized as valid;40 the incongruity had been resolved, rather arbitrarily, in favour of the suspension of the obligation.41

4. Condiciones casuales and potestativae

To return to our original example: "Si Titius consul factus merit" was a paradigm of what came to be referred to as a condicio casualis;42 whether or not the promise became effective was dependent upon an event that was in principle outside the control of either of the parties. Satisfaction of the condition could, however, also depend on the stipulator's (i.e. the potential creditor's) will. A promise of the type "Si in Capitolium ascendero, quinque aureos dare spondes? Spondeo" was perfectly sound; the obligation to hand over the money was subject, in these cases, to a (suspensive) condicio "potestativa".43 Not admissible, on the other hand, were conditions turning upon an event that was wholly in the control of the promisor.44 A promise such as "Si in Capitolium ascenderis, quinque aureos dare spondes? Spondeo" was tantamount to "Si volueris, quinque aureos dare spondes? Spondeo"; it obviously lacked one of the essential ingredients of a legally recognizable promise, namely the will to be bound.

5. Positive and negative conditions

"Si Titius consul factus fuerit" and "Si in Capitolium ascendero" were positive conditions: something had to happen before the respective obligations could become effective. It was equally possible, however, to make the operation of an obligation dependent upon a particular event not happening. Of these negative conditions it was the negative

39Hence the term "preposterous", composed of the prepositions "prae" and "post". On lust. Ill, 19, 14, see Antonio Masi, "Stipulatio praepostera", (I960) 63 BIDR 181 sqq.; Backhaus, op. cit., note 34, pp. 99 sqq.

40Cf. first the decision by the Emperor Leo, as reported in Inst. Ill, 19, 14 (dealing only with preposterous dowry stipulations), then, more generally, Justinian, in Inst. Ill, 19, 14 and C. 6, 23, 25.

41". . . exactione videlicet post condicionem vel diem competente": С 6, 23, 25-

42Cf. the classification in С 6, 51, 1, 7.

43С. 6, 51, 1, 7. This text further mentions condiciones mixtae ("quarum eventus ex fortuna [et] ex honoratae personae voluntate . . . pendcat"; for example: marriage).

44Cf. Paul. D. 45, 1, 46, 3 ("Illam autem stipulationem "si volueris, dari?' inutilem esse

constat"); Ulp. D. 45, 1, 17; Ulp. D. 30, 43, 2; Ulp. D. 18, 1, 7 pr.

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serit"45—conditions of this type would often be satisfied only with the death of the prospective creditor; for before his life's pilgrimage had finally been completed, one could rarely be certain that he might not perhaps one day still decide to saunter up Capitol hill. Yet, the moment of death was hardly the most apposite time to let him receive the reward for his abstention. It was the great Quintus Mucius Scaevola, the most famous representative of the "veteres" jurisprudence, who devised a way out of this predicament. A testator had bequeathed something to his wife under the condition that she would not remarry. Strictly speaking, the bequest would become effective only when she died without having contracted another marriage. Yet, Mucius reversed the position.46 The widow, he opined, was to be given the legacy immediately, but she had to undertake to return it if she did, in fact, remarry. This undertaking took the form of a stipulation and came to be referred to as the cautio Muciana. It enabled the legatee to enjoy what had been left to her whilst she was still alive; at the same time considerable pressure was brought to bear upon her to comply with the condition set by the testator. Obviously this was a most satisfactory solution that commended itself to be extended; and the Roman jurists appear, indeed, to have availed themselves of the cautio Muciana wherever a negative potestative condition was included in a will,47 even if the question of its satisfaction or otherwise might already become determinable during the lifetime of the (conditional) beneficiary.48

6. Condicio pendet

Conditions in the original, Roman sense of the word left the fate of the transactions to which they were appended in suspense and they thus created, for the time being, a state of uncertainty. Once the condition was satisfied (the technical expression normally used was "si exstiterit condicio"),49 the transaction became fully effective; upon failure of the condition ("defectus condidonis")50 the situation was the same as if the transaction had never been entered into. But what exactly was the legal position after conclusion of the (conditional) contract, but before the condition had either been satisfied or had failed? Did this legal relationship "in statu nascendi", as it were, have no legal significance at all?

45C f. U lp. D . 35, 1 . 7pr.

46Cf. Iul./Maec. D. 36, 1. 67, 1; Pap. D. 35, 1, 73.

47Cf. Ulp. D. 35, 1, 7 pr.; Gai. D. 35, 1. 18 (dealing with the institution of heirs). The question whether these are classical or post-classical generalizations is disputed; cf. Antonio Masi, "In tema di 'cautio Muciana'", (1962) 13 lura 175 sqq.; Voci, DER, vol. II, pp. 606 sq.; Kaser, RPr I, p. 254; idem, RPr II, p. 97, n. 19.

48As, for example, in the case of "si Stichum поп manumiscrit" (lav. D. 35, 1, 67). The condition could be satisfied if Stickus died before having been manumitted.

49Cf, for example, Paul. D. 18, 6, 8 pr.

50Cf., for example, Tryph. D. 28, 2, 28 pr.

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And, secondly, what precisely did it mean when it is said that satisfaction of the condition made the transaction fully effective? Was that "effectiveness" of a retroactive nature or did it operate ex mine? On neither of these two issues can a clear and straightforward answer be given.

(a)"Non est pro eo, quasi sit"

Turning to the first one, we find that the Romans sometimes used a slightly metaphorical expression to describe the situation. "Condicio pendet", they said51 without, however, inferring specific legal consequences from this image of a state of "pendency". Generally speaking, the position was as Paulus summarized it: "Quod pendet, non est pro eo, quasi sit"52—what is pending is not (yet) in being, at least not as what it was intended to be. Thus, most importantly, a contract was not enforceable pendente condicione.53 If performance had mistakenly been rendered, it was recoverable by means of a condictio indebiti;54 for what was owed sub condicione was still indebitum. The situation could be different if the condition was bound at all events to be fulfilled: "Quod si ea condicione debetur, quae omnimodo exstatura est, solutum repeti non potest";55 the reason either being that the Roman lawyers treated this "condition" as a dies56 or that they regarded it as improper of the prospective debtor to claim what he subsequently had to hand over again in any event {"[d]olo facit, qui petit quod redditurus est").57 A conditional contract of sale, as we have seen, was not "perfecta"58 and did not therefore have the effect of transferring the risk to the purchaser. Nor did it provide a iusta causa, on account of which the purchaser could begin to usucapt the object delivered to him.59 A person who had transferred ownership sub condicione remained, for the time being, owner of the object.60 He was therefore free to transfer it to a third party or to incumber it, although these subsequent dispositions also remained in a state of pendency; they became fully effective only upon failure of the condition under which the first transaction was concluded.61

51Cf., for example, lav. D. 12, 1. 36; Paul. D. 18, 6, 8pr.;Iul. D. 28, 5, 38, 4 ("pendente condicione"); for a detailed analysis, see Carlo Gioffrcdi, "'Pendcnza' e 'sospensione' dalle fonti romane alia dommatica odierna", (1956) 22 SDHI ИЗ sqq.

52D. 50, 17, 169, 1.

53Ulp. D. 50, 16, 54; Marci. D. 20, 1, 13, 5.

54Pomp. D. 12, 6, 16 pr.

55Ulp. D. 12, 6, 18.

56Cf. Daube, Roman Law, pp. 122 sq.; Alan Rodger, "Emptio perfecta Revisited: A Study of Digest 18, 6, 8, 1", (1982) 50 TR 344; cf. also already Cluck, vol. 13, p. 78.

57Paul. D. 44, 4, 8 pr.; Paul. D. 50, 17, 173, 3. Cf. also Liber Scxtus. Lib. V, Tit. XII, De regulis iuris, L1X.

5H Cf. supra, p. 284.

59Paul. D. 41, 4, 2, 2; Paul. D. 18, 6, 8 pr.

60UE2, 2; Ulp. D. 24, 1, 11 pr.

61Cf. Gai. D. 30, 69, 1; Marci. D. 20, 1, 13, 1.

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(b) The spes debitum iri

Yet, on the other hand, a conditional transaction did not constitute a legal "nothing". After all, the parties had already come to an arrangement, and some form of legal relationship had clearly been established. As far as conditional contracts were concerned, this legal relationship was described by Justinian as a "spes debitum iri",62 an expectancy that the obligation(s) would become effective. This expectancy could, of course, not be equated to the obligation itself, but it was none the less a part of both parties' estates. As a consequence, it was both actively and passively transmissible on death: "eamque ipsam spem", in the words of Justinian, "transmittimus, si, priusquam condicio existat, mors nobis contigerit."63 Furthermore, a novation as well as a formal release (acceptilatio) could be effected with regard to a conditional obligation64 and it could also be secured by way of a pledge.65 Transfer of ownership sub condicione, too, had certain preliminary effects. The freedom of the owner to dispose over the object was restricted in so far as he could no longer take any step that would conclusively have changed its status and thus have detrimentally affected the prospective acquirer's position: if the object of the transfer was a slave, he could no longer manumit him,66 if it was a tract of land he could not dedicate a part of it as locus religiosus.67 Again it was argued that neither the death of the transferor nor that of the transferee, pendente condicione, had any impact on the situation:68 the respective heirs found themselves in exactly the same position as their deceased predecessors. Again, therefore, a rather secure expectancy69 resulted from the conditional transaction.

62Inst. Ill, 15, 4; cf. also Ulp. D. 50, 16, 54.

63Inst. Ill, 15, 4; Paul. vat. 55; Iul. D. 36, 2, 19, 3; Paul. D. 18, 6, 8 pr.; but cf. also Ulp.

D.35, 1, 59 ("Intercidit legatum si ea persona decesserit, cui legatum est sub condicione"); Werner Flume, "Zur Vererblichkeit der suspensiv bedingten Obligation nach klassischem romischem Recht", (1936) 14 TR 19 sqq.; Masi, Condizione, pp. 19 sqq., 195 sqq.; Gottfried Schiemann, Pendenz und Riickwirkung der Bedingung (1973), pp. 8 sqq.; Kaser, RPr I, p. 256; Thomas, TRL, p. 236; contra (in classical Roman law the transaction lapsed when one of the parties died): F. Vassalli, '"Dies vel condicio'. Lineamenti della dottrina romana della condizione", in: Studi giuridici, vol. I (1960), pp. 268 sqq.; Salvatore Riccobono, "Formazione del domma della transmissibilita all' erede dei rapporti sotto condizione [fr. 23 D. XXIII, 4Afr. VII qu. eV. F. 55]", in: Studi in onore di Silvio Perozzi (1923), pp. 351 sqq.; Buckland/Stein, pp. 424 sq.; cf. also Voci, DER, vol. I, pp. 291 sqq. (the question was controversial among classical jurists).

64Ulp. D. 46, 2, 14, 1; Pomp. 13. 46, 3, 16; Pomp. D. 46, 4, 12; Pap. D. 50, 17, 77. These

acts, of course, became effective only once the condition had been satisfied.

fiS Gai. D. 20, 4, 11, 1. The pledge, under these circumstances, was also sub condicione;

cf. also Marci. D. 20, 1, 5 pr.; Afr. D. 20, 4, 9 pr. —2.

66lav. D. 33, 5, 14; Gai. D. 40, 9, 29, 1.

67Pomp. D. 35, 1, 105; Paul. D. 11, 7, 34.

68Iul. D. 39, 5, 2, 5 ("Si pecuniam mihi Titius dederit absque ulla stipulatione, ea tamen condicione, ut tune domum mea fieret, cum Seius consul factus esset: sive furente eo sive mortuo Seius consulatum adeptus fuerit, mea fiet"). The question was, however, controversial; cf. Ulp. D. 23, 3, 9, 1; Masi, Condizione, pp. 142 sqq.; Schiemann, op. cit., note 63, pp. 10 sqq.; Kaser, RPr i, p. 255.

69Schiemann, op. cit., note 63, p. 12.

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7.The effect of satisfaction of the condition

(a)Operation ex nunc

Closely related to the question of how to determine the legal relationship between the parties during the state of pendency was the second of the above-mentioned issues; for if one were to accept that satisfaction of the condition generally had a retroactive effect, this could, at least to some extent, and with regard to certain problems, obviate the necessity of postulating preliminary effects pendente condicione.70 Again, the attitude adopted by the Roman lawyers appears to have been rather equivocal71 and the conflicting views expressed in our sources have given rise to lively controversies among modern scholars. Thus, on the one hand, we read: "Si rem meam sub condicione stipuler, utilis est stipulatio, si condicionis existentis tempore mea non sit"72—if I enter into a conditional stipulation that I be given my own property, the transaction is valid if the property has ceased to be mine at the time of satisfaction of the condition. Obviously, therefore, it is to this time, not to the moment when the contract was concluded, that we must look in order to determine its validity. The same view was adopted, with regard to a contract of sale, by Marcellus in D. 18, 1, 61: "Existimo posse me id quod meum est sub condicione emere, quia forte speratur meum esse desinere." There is still the prospect that the object of the sale, upon fulfilment of the condition, might no longer belong to the purchaser. If that should indeed turn out to be the case, the sale is valid.

(b) Retroactive effect

But then there is a variety of texts which appear to suggest that satisfaction of the condition had a retroactive effect. Some of them were quite generally phrased. ". . . in stipulationibus id tempus spectetur quo contrahimus", Paulus is reported to have opined73 and this statement was even elevated by the compilers to the status of a regula iuris antiqui.74 With regard to the contract of sale we have a passage, credited also to Paul, in which the position after satisfaction of the condition is described as "quasi iam contracta emptione in

70Cf, for example, the argument advanced by Vassalli, op. cit., note 63, pp. 268 sqq.: the positions of conditional debtor/creditor in classical law were intransmissible on death because retroactivity was unknown; c(. also Buckland/Stein, p. 424. Gai. D. 20, 4, 11, 1 also shows how closely the two issues were related.

71Thomas, TRL, p. 235.

72Pomp. D. 45, 1, 31; Masi, Condizione, pp. 98 sqq.

73D. 45, 1, 78 pr. (the decision to which this phrase was attached as an argument reads as follows: "Si films familias sub condicione1 stipulatus emancipatus fuerit, deinde exstiterit condicio, patri actio competit").

74Paul. D. 50, 17, 144, 1.

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praeteritum"75—as though the contract were related back to the time of the initial agreement. Other decisions deal with more specific issues. Here we may turn again to Gaius D. 20, 4, 11, 1, the case that dealt with a hypotheca aimed at securing a conditional stipulation.76 A conditional debt, as we have seen, provided an adequate basis for a valid pledge;77 but that pledge itself became operative only once the condition had been satisfied. If the same object had in the meantime been used once again as a security—this time, however, for an unconditional loan—the question arose as to which of the two creditors enjoyed preference. If the condition failed to materialize, there was, obviously, no problem. The first hypotheca having lapsed with the debt it was supposed to secure, the second creditor acquired the first rank. But if the condition was in fact satisfied, the second creditor remained second in line; for the matter, according to Gaius, had to be looked at as if the first stipulation had become effective at the time it was concluded: ". . .

perinde habetur, ac si illo tempore, quo stipulatio interposita est, sine condicione facta esset." The first creditor thus enjoyed the rank he would have had in case of an unconditional transaction.

(c) Modern interpretation

Various attempts have been made to push the sources into some kind of doctrinal straitjacket. The Roman lawyers have, on the one hand, been taken to have made conditional transactions generally retroactive upon satisfaction of the condition.78 Others have maintained that retroactivity was a Byzantine notion; in classical Roman law all conditions produced effects only from the moment of their satisfaction.79 The truth, as usual, appears to lie somewhere in the middle. It is unlikely that there ever was a uniform rule one way or the other; neither was

75 D. 18, 6, 8 pr. (the prime candidate, in the present context, of post-classical corruption of the classical law).

7fi "Videamus, an idem dicendum sit, si sub condicione stipulatione facta hypotheca data sit, qua pendente alius credidit pure et accepit eandem hypothecam, tune deinde prioris stipulationis exsistat condicio, ut potior sit qui postea credidisset. sed vereor, num hie aliud sit dicendum: cum enim semel condicio exstitit, perinde habetur, ac si illo tempore, quo stipulatio interposita est, sine condicione facta esset. quod et melius est." Cf. supra, note 65.

78The general retroactivity doctrine has been developed by Bartolus, as Schiemann, op. cit., note 63, pp. 29 sqq. has pointed out. For a detailed analysis of its adoption and application during the various periods of the ius commune, see Schiemann, pp. 36 sqq. Among 19th-century pandectists it became one of the most widely discussed and controversial topics in the whole field of private law; cf., for example Fr. Eisele, "Das Dogma von der riickwirkenden Kraft der erfullten Suspensiv-Bedingung", (1867) 50 Archiv jur die civilistische Praxis 253 sqq.; Windscheid/Kipp, § 91. For a long time, the general retroactivity doctrine dominated the scene (cf., for example, Vangerow, Patidekten, § 95; Puchta, Pandekten, § 61). It was ultimately shattered by Windscheid.

79Cf., in particular, Vassalli, op. cit., note 63, pp. 273 sqq. (maintaining his view on the basis of rather sweeping interpolation allegations); cf. also Gian Gualberto Archi, "II negozio sotto condizione sospensiva nella compilazione di Giustiniano", in: Scritti di diritto romano, vol. Ill (1981), pp. 2079 sqq.

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retroactivity entirely alien to classical law,80 nor did Justinian dramatically change the law.81 The problem appears to have been approached in a characteristically pragmatic fashion;82 more particularly, the approach adopted may well have differed according to the specific type of transaction (stricti iuris or bonae fidei) to which the condition was appended.83 Also, it must always be kept in mind that a doctrine of binding precedent did not exist in classical Roman law. The jurists often differed as to how to deal with a specific problem, and in the present context, too, it is more than likely that the solution of individual cases remained controversial.84

8.Interpretation of conditions

(a)General considerations

We have been looking at the consequences of the satisfaction of conditions. But when were conditions satisfied? This depended entirely on how they were drafted and what they were intended to achieve; it was, in other words, a matter of interpretation. In many cases the issue was straightforward. Under a stipulation of the type "Si Capitolium ascenderis, quinque aureos dare spondes?" the five gold coins became exactable if the stipulator had walked up Capitol hill; where the stipulation said "Si intra biennium Capitolium non ascenderis, quinque aureos dare spondes?",85 the same sum could be claimed if within the next two years the stipulator did not in fact embark on that ascent. But we have already come across examples where the matter was much more difficult to determine—as in the case of a negative potestative condition that did not set a time within which the stipulator had to act if he did not want to pay the money ("Si in Capitolium non ascenderis

. . .").86 Generally speaking, the classical Roman jurists adopted a flexible rather than a formalistic approach towards the interpretation of conditions.87 Ambiguities in stipulations, as usual, tended to be resolved contra stipulatorem;88 with regard to testamentary dispositions, the general favor testamenti prevailed89 and in the case of conditional releases from slavery (whether by last will or on account of

m Cf., in genera], Volker Kurz, Voxund Riickwirkungen im klassischen romischen Recht

(unpublished Dr. iur. thesis, Freiburg i. Br., 1971), pp. 5 sqq. and passim. 8 Masi, Condizione, pp. 158 sqq.; Kaser, RPr II, p. 96.

K2 Thomas, TRL, p. 237.

83 Cf. Masi, Condizione, pp. 109 sqq.; Alfredo Calonge, "En torno al problema de la retroactividad de la condicion en el derecho clasico", in: Studi in ortore di Edoardo Volterra, vol. Ill (1971), pp. 147 sqq., 158 sqq.; Kurz, op. cit., note 80, pp. 117 sqq.

a4 Kaser, RPr 1. pp. 256 sq.

85Cf. the example discussed in Cels. D. 45, 1, 99, 1.

™Pap. D. 45, 1. 115, 1; for details, cf. supra, p. 723.

87 As they did with regard to both dispositions mortis causa and inter viros in general; cf. supra, pp. 625 sqq,

8 Cf. supra, pp. 639 sqq. and also, for example, p. 104. 89 Cf, for example, Wieling, (1970) 87 ZSS 230 sqq.

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a transaction inter vivos), the jurists were guided by the favor libertatis.90

(b) Interpretatio infavorem libertatis

Historically the most significant example of such an interpretatio in favorem libertatis concerned the statuliber. This was a slave manumitted in a testament upon the condition that he would pay a certain sum of money to the heir;91 this money, obviously, he normally had to take from his peculium. Now, it could happen that at the time when the testator died the slave did not have the necessary sum available to effect his release, because, for instance, a third party had failed to repay a loan he had been given by the slave. In cases of this kind it was up to the heir to sue the borrower: he was the slave's new master and was thus, formally, in charge of the peculium. Of course, no legal duty was incumbent on him to collect the debt; but if he failed to do so, he effectively prevented the condition from materializing. This was not to be welcomed; for at one and the same time, he thus frustrated the expectation of the statuliber to attain his freedom and the testator's true intention—which had, typically, been to make over to his heir the value of the slave, rather than the slave as such. Under these circumstances, Servius92 was prepared to read a tacit proviso into the condition that had been set by the testator:93 the slave was to be released upon payment of a certain sum of money, or if the slave's failure to render such payment was attributable to the heir. Or, to put the same idea slightly differently: the condition was treated as if it had in fact been satisfied, if the heir had himself prevented it from materializing.94 It was in this form that the rule came to be generalized. "[Qjuibus

40 For details, see Masi, Condizione, pp. 227 sqq.

"' For details, see Guido Donatuti, Lo statulibero (1940); Kascr, RPr I, p. 114. 1)2 Cf Ulp. D. 40, 7, 3, 2.

43Cf. also Watson, Obligations, pp. 1 sq. ("implied term"); Knutel, Stipulatio poenae, pp. 211 sq. Both authors deal with Ulp. D. 22, 2, 8, where Ulpian, once again, refers lo Servius, this time for the proposition that a penalty cannot be claimed if the event upon which its forfeiture has been made dependent was brought about by the stipulator ("Servius ait pecuniae traiecticiae poenam peti non posse, si per creditorem stetisset, quo minus earn intra certum tempus praestitutum accipiat"). This is the historical origin of the rule embodied in § 162 II BGB: "If the fulfilment of a condition is brought about in bad faith by the party to whose advantage it would operate, the condition is deemed not to have been fulfilled." For South Africa, cf. Joubert, Contract, p. 177; "By parity of reasoning the same principle can be applied where the party who would be a creditor upon fulfilment actually ensures fulfilment of the condition contrary to the intention of the parties." As far as classical

Roman law is concerned, cf. also Modest. D. 46, 1, 41 pr. (dealing with fideiussio indemnitalis; on which see supra, pp. 137. 140, 142), as interpreted by Rolf Knutel, "Zur Frage der sog. Diligenzpflichten des Glaubigers gegeniiber dem Biirgen", in; Festschrift fur Werner Flume, vol. I (1978), p. 568 sqq., 570.

94 Cf. also UE 2, 5; "Si per heredem factum sit, quo minus statu НЬет condicioni pareat, proinde fit liber, atque si condicio expleta fuisset"; see further UE 2, 4, another decision in favorem libertatis, attributed by Ulpian to the XII Tables already. On the favor libertatis as motivation for the decisions concerning the statuliber, cf. also Kalchthaler, op. cit., note 9, pp. 53 sqq.

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exemplis stipulationis quoque committi quidam recte putaverunt, cum per promissorem factum esset, quo minus stipulator condicioni pareret", as Julian reports.95

(c) Condition prevented from materializing

But what was recognized with regard to formal declarations (wills, first of all, then stipulations) was also, of course, applicable in the case of emptio venditio and other informal transactions. Here the equation of prevention with satisfaction—quite in line with the bonae fidei nature of these contracts—found an even broader field of operation. Take, for example, the case where a library is sold upon condition that the municipality sells to the purchaser the necessary ground to put it up.96 This is what Justinian would have referred to as a condicio mixta: the municipality had to be prepared to make a site available but the purchaser had to do his bit too; unless, at least, he asked for a suitable site to be sold and transferred to him, there was no chance that the condition would materialize. The purchaser's cooperation towards the perfection of the sale was not, of course, enforceable; but if he failed to render it, the condition was treated as satisfied and the vendor was able, as a result, to bring the actio venditi. Why he had prevented the condition from materializing was relevant only in so far as his failure to act had to have been "attributable" to him; the standard expression used in this context was "si per emptorem steterit quo minus impleatur".97 That implied neither an intention to defraud the other party nor plain dolus or even fault at large, in the sense of personal blame.98 Provided only that the reason for the non-perfection of the sale fell within his sphere of responsibility, the purchaser's refusal to treat the contract as valid was seen, apparently, as an infringement of the precepts of good faith.99

How could all these cases (the one involving a will, the other a unilateral contract, the third a contract of sale) be reduced to one common denominator? What was objectionable, and had thus led the

95 D. 35, 1, 24. By the time of Ulpian, the matter was no longer controversial: Ulp. D. 50, 17, 161 ("quibus exemplis stipulationes quoque committuntur . . ."). Cf. further David Daube, "Condition Prevented from Materializing", (1960) 28 TR 274 sqq.; Kalchthaler, op. dt., note 9, pp. 25 sqq.

ж Ulp. D. 18, 1, 50. Cf. also Pomp. D. 18, 1, 8 pr. and Daube, (1960) 28 TR 281 sqq.; Kalchthaler, op. dt., note 9, pp. 59 sqq.

97 Cf., for example, Ulp. D. 18, 1, 50; cf. also Serv./Ulp D. 22, 2, 8 (as far as stipulations were concerned). Other texts use the phrase "si per heredem (promisorem) factum sit": UE 2, 5; cf. also Iul. D. 35, 1, 24; Ulp. D. 50, 17, 161.

9S Cf. supra, pp. 105 sq. and also Rolf Knutcl, "Zur sogenannten Erfullungsund Nichterfiillungsfiktion bei der Bedingung", 1976 Juristische Blatter 616; idem, Stipulatio poenae, p. 197.

1)9 Cf. also Karl Hackl, "Sulla finzione nel diritto privato", in: Studi in onore di Atnaldo Biscardi, vol. I (1982), p. 257. Whether or not, in an individual case, prevention could be equated with satisfaction, continued, however, to depend on the interpretation of the contract; hence, for example, the solution arrived at in Iul. D. 18, 1, 41 pr., where to treat condicio pro impleta (and consequently the contract of sale) as operative would obviously not have made sense: Daube, (1960) 28 TR 271 sqq.

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