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".[3677] 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.[3678] In the present case, for instance, which appears to have been eagerly discussed,[3679] Labeo, Neratius und Aristo cut the Gordian knot by arguing that "detracto verbo medio 'postea' simul ei et libertatem et hereditatem competere":[3680] 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.[3681] 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, "lulianus inutilem esse institutionem scribit", we are, not surprisingly, informed, "cum condicio existere non possit."[3682] 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 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.[3683] 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;[3684] the incongruity had been resolved, rather arbitrarily, in favour of the suspension of the obligation.[3685]4.
More on the topic Casus perplexus:
- The liability of the borrower
- ENGLISH-LATIN GLOSSAR
- Inde
- Pacta ex continent adiecta
- Problems with our conception
- INTRODUCTION
- CHAPTER THREE A NEW APPROACH TO UNDERSTAND THE RELATIONSHIP BETWEEN LOCAL AND ROMAN LAW IN THE ARCHIVES
- Index
- The notion of an implied condition (natural law)
- ABBREVIATIONS
- The decision
- Conclusion
- The International Community as a Political Myth
- Causa as an extra piece of "garment"