Paul. iii. 4, § 1: Condicionum duo sunt genera, aut enim possibilis est aut impossibilis ; possibilis est, quae per rerum naturam admitti potest, impossibilis, quae non potest.' Gai. iii. 98: Si quis sub ea condicione stipuletur, quae existere non potest, veluti: 'si digito coelum tetigerit,' inutilis est stipulatio. Sed legatum sub impossibili condicione relictum nostri praeceptores proinde deberi putant, ac si sine. condicione relictum esset; diversae scholae auctores non minus legatum inutile existimant, quam stipulationem; et sane vix idonea diversitatis ratio reddi potest.a 2 BOOK I. Chapter 1. a Cf. Brown, 3. 'conditions,im Ulp. Obtinuit, impossibiles condiciones testa- possible." Iul. Stipulatio hoc modo concepta si here- Paul. Condiciones, quae contra bonos mores inseruntur remittendae sunt, veluti 'si parentibus Sc. testasuis alimenta non praestiterit.'-D. 28, 7, 9.o 1 Conditions are of two kinds, for they are either possible or impossible; a possible condition being that which in the nature of things can be entertained, an impossible, that which cannot. 2 * If a man stipulate under a condition which cannot come to pass, as for instance, if he shall touch the sky with his finger, the stipulation is null. But a legacy left subject to an impossible condition, our teachers think, is just as valid as though it had been left unconditionally; authorities of the opposite school consider that the legacy is no less void than the stipulation; and indeed it is scarcely possible to give a satisfactory reason for the difference. He maintained that if impossible conditions had been attached to a will, they were to be regarded as null. 4 A stipulation couched in this fashion: Do you undertake, if you shall not make me heir, to give so much? is void, because this stipulation is contrary to sound morals. 'Conditions that are inserted contrary to sound morals must mento. So long We come now to the effect of conditions. as the suspensive condition is pending ('cond. pendet'), the transaction continues to be inoperative; the right to be set up by it does not yet exist, but the possibility of its commencement receives certain juridical consideration, and a personal link exists between the parties. Inst. iii. 15, 4: Ex condicionali stipulatione tantum spes est debitum iri, eamque ipsam transmittimus si priusquam condicio existat, mors nobis contigerit.1 Ulp. In iure civili receptum est, quotiens per eum, cuius interest condicionem non impleri, fiat quominus impleatur, perinde haberi ac si impleta condicio fuisset.-D. 50, 17, 161.2 The occurrence as well as the lapse of the condition ('cond. existit, deficit ') puts an end to the uncertainty which attends the operation of the transaction: the lapse, because as regards the commencement of the right it terminates the operation of the transaction as from the first; the occurrence, because imparting operation to it, so that now the relation in question is treated as one created by the conditional declaration of will, the obligation as one already established at the moment when the will was declared (although still suspended in its operation), and the real legal relation as being one indeed now for the first time, but arising in a direct manner. Gai.cum semel condicio exstitit, perinde habetur, ac si illo tempore, quo stipulatio inter be given up, as, for instance, if a man shall not afford his parents sustenance. 1 A conditional stipulation gives rise to the mere hope that it will become a debt, and we transmit this hope [to our heirs] if death shall overtake us before the condition is fulfilled. 2 It has been accepted in the i. c. that whenever a person whose interest it is that a condition should not be fulfilled procures its non-fulfilment, it is to be regarded just as though the condition had been fulfilled. posita est, sine condicione facta esset.-D. 20, Paul. : . . . si sub condicione stipuletur, Id.: Si filiusfamilias sub condicione stipulatus Id. Si sub condicione emptio facta sit, pendente condicione emptor usu non capit.-D. 41, 4, 2, 2.* : Id. Quodsi sub condicione res venierit, si quidem defecerit condicio, nulla est emptio sicuti nec stipulatio. . . . Quodsi pendente condicione emptor vel venditor decesserit, constat, si extiterit condicio, heredes quoque obligatos esse, quasi iam contracta emptione in praeteritum. . . Stipulationes et legata condicionalia perimuntur, si pendente condicione res extincta fuerit.D. 18, 6, 8 pr.5 1 when once a condition is fulfilled, the stipulation is regarded just as if at that time when it was introduced it had been made unconditionally. 2... if he have stipulated under a condition, . . . the stipulation obtains legal force immediately, although the action arising out of it be suspended. If a filius-familias who has stipulated under a condition. has been freed from power, and the condition has been fulfilled, the action belongs to the father, because in a stipulation regard is had to the time when we concluded the contract. If a purchase have been made conditionally, time does not run in favour of the buyer as long as the condition is pending. But if a thing have been sold under a condition and this have lapsed, the purchase is void, just like a stipulation. . . . But if, while the condition is pending, the purchaser or vendor die, it is settled the heirs also are under an obligation, should the condition be fulfilled, as though the purchase had been already concluded for the past. . . . Stipulations and ditional legacies are extinguished if the thing be destroyed while the condition is pending. con BOOK L Chapter I. BOOK I. Chapter 1. a See the passage cited above from Ulp. in D. 18, 2, 2 pr. Reversely, a transaction concluded under a resolutory condition has full operation at once, and has retrospective effect upon the occurrence of the condition." Thirdly, the TERM (or day, 'dies'), an addition to the declaration of will, which arbitrarily limits the legal relation established by it in respect of time. (1) The initial term and the final term. Paul. Circa diem duplex inspectio est, nam vel ex die incipit obligatio, aut confertur in diem; ex die veluti: kalendis Martiis dare spondes?' cuius natura haec est, ut ante diem non exigatur; ad diem autem usque ad kalendas dare spondes?' Placet autem ad tempus obligationem constitui non posse,-nam quod alicui deberi coepit, certis modis desinit deberi: plane post tempus stipulator vel pacti conventi vel doli mali exceptione summoveri poterit.-D. 44, 7, 44, 1.1 Inst. iii. 15, 3: Si ita stipuleris: decem aureos annuos quoad vivam dare spondes?' et pure facta obligatio intelligitur et perpetuatur, quia ad tempus deberi non potest: sed heres petendo pacti exceptione summovebitur. 1 With regard to the dies there is a twofold consideration, for either the obligation begins with a dies, or it is postponed until a certain dies. From a dies, as: 'Do you undertake to give soand-so on the 1st of March?' Its nature is such that no claim can be made before the dies. But until a dies: 'Do you undertake to give so-and-so until the first day of next month?' But it is considered that an obligation cannot be fixed for a certain length of time. . . for what has begun to be owing to any one can only cease to be owing in a certain manner, but naturally the contracting party can after a time be defeated by the plea of the contractual agreement or of fraud. 2 If you stipulate thus: 'Do you undertake to give me yearly as long as I live ten gold-pieces ?' the obligation is regarded as absolute and perpetual, because a debt cannot be due for a time; but the heir on suing will be defeated by the plea of an agreement. (2) Dies certus an, certus quando; certus an, incertus quando; incertus an, certus quando; incertus an, incertus quando. The last avails always, the last but one usually as a condition. Papin. Heres meus, cum morietur Titius, centum ei dato:' purum legatum est, quia non condicione sed mora suspenditur; non potest enim condicio non existere.-D. 35, 1, 79 pr.' Ulp. Si cum heres morietur' legetur, condicionale legatum est: denique vivo herede defunctus legatarius ad heredem non transfert.— D. 36, 2, 4 pr. Pomp. Si Titio, cum is annorum quattuordecim esset factus' legatum fuerit, . . . non solum diem sed et condicionem hoc legatum in se continet 'si effectus esset annorum quattuordecim.' -1. 22 pr. eod.' (3) The 'dies' does but suspend the operation of the declaration of will without placing it in uncertainty. The obligation in question is therefore established forthwith, only that it cannot be made available or be exercised before the occurrence of the 'dies;' or the particular real right, which is certain as to its commencement, substantially exists upon the occurrence of the 'dies.' Id autem quod in diem stipulamur, statim quidem debetur, sed peti prius quam dies veniat non potest. § 2, I. de V. O.' 'My heir when Titius dies shall give to him a hundred' . . this is an absolute legacy, because it depends not upon a con. dition but upon delay, for the condition cannot but be fulfilled. 2 If a legacy be given upon the death of the heir,' it is conditional; nor can it during the lifetime of the heir pass from a dead legatee to his heir. * If a legacy have been given to Titius 'upon his having become fourteen years of age'. . . this legacy comprehends condicio no less than dies: 'if he should have reached the age of fourteen.' That which we stipulate for with reference to date is indeed BOOK I. Chapter 1. |