Certain rem dare obligations

(a) Supervening impossibility

We shall start our discussion by looking at the actiones stricti iuris entailing certam rem dare obligations. A has promised, by way of stipulation, to deliver the slave, Pamphilus, to  on 10 October.

¹ Cf. art. 1147 code civil, also art. 1184; Zwdgert/Kotz, pp. 213 sqq. ²%

280 sqq., 325 sq. BGB.

³ Cf. infra, pp. 812 sq.

⁴ §§ 459 sqq. (sale), §§ 537 sqq. (lease), §§ 633 sqq, (contract for work).

⁵ Cf. e.g. Ulrich Huber, "Lcistungistorungen", in: Gutachten itnd Vorschläge ãèã Oberarbeititng des Schuldrechts, vol. I (1981), pp. 756 sqq.; Zweigert/Kotz, pp. 232 sqq.

783

this promise has been made, but before the time for delivery arrives, Pamphilus dies. Thus on 10 October A is unable to satisfy B's claim. If B were to sue A, the judge would have to absolve the latter. From the point of view of substantive law, this result may bejustified in terms of the rule that "ought" implies "can": if A cannot perform, he can be under no obligation to do so. Impossibilium nulla est obligatio: in case of initial impossibility of performance an obligation cannot come into existence/' impossibility occurring after conclusion of the contract makes it fall away again. Hence the statement by Pompomus: "Verborum obligatio... naturaliter resolvitur... cum res in stipulationem deducta sine culpa promissoris in rebus humanis esse desiit."^{[4029] [4030] Under procedural auspices, the matter was determined by the wording of the formula. On account of a stipulation concerning delivery of a specific thing B could ask to be granted the condictio (certae rei).[4031] The programme of litigation was therefore settled in the following terms: "Si paret Nm Nm A° A° Pamphilum servum dare oportere, quanti ea res est, tantam pecuniam iudex N'n N"1 A° A° condemnato, si non paret absolvito." First of all, therefore, the judge had to determine whether "it appeared" that A had to hand over the slave Pamphilus to B.}

(b) Perpetuatio obligationis

Clear-cut and straightforward as it may seem, this result is clearly unsatisfactory if Pamphilus' death had been attributable to A: for it would be strange to see a debtor terminate his obligation by negligently or perhaps intentionally removing the object^[4035] that he was supposed to hand over. It was in order to address this problem that the Roman lawyers resorted to a simple and pragmatic device: they introduced a fiction.^[4036] If the impossibility was due, in some way or other, to the behaviour of the debtor, the object of the performance was deemed to be still in existence: "Cum facto promissoris res in stipulatum deducts intercidit, perinde agi ex stipulatu potest, ac si ea res extaret: ideoque promissor aestimatione eius punitur."^{11 * * [4037] If the situation is to be treated as if Pamphilus were still alive, it is in fact possible to say that A "appears to have to give the slave to B". Also, the judge can condemn A into "quanti ea res est, tantam pecuniam", that is, the (presumptive) market value of Pamphilus at the time of litis contestatio. As a result, therefore, the obligation continues to exist; it is, as the Roman lawyers put it, "perpetuated".[4038] It was the perpetuatio obligationis, which enabled the creditor to claim the slave (and thus to obtain its pecuniary value), even though performance was no longer possible: "Effectus huius constitutionis[4039]*1 ille est, ut adhuc homo peti possit."[4040]}

It should be noted that impossibility, in the present context, means objective impossibility.

(c) Culpa

Perpetuatio obligationis required that the (objective) impossibility was attributable to the debtor; or, in the parlance of the Roman lawyers: the debtor was liable "si per eum stetit, quo minus daret."²⁰ But when was an event "attributable" to the debtor? The answer is provided by Paulus, according to whom "quotiens culpa intervenit debitoris, perpetuari obligationem".²¹ "Culpa", in this context, is not just the Roman equivalent of our modern concept of negligence; nor does it merely indicate that the debtor must have caused the impossibility. The term "culpa"²² contained an element of disapproval, in that the debtor's behaviour had fallen short of what was expected of him according to the precepts of both ius and mos. At the same time, however, it was not the notion of individual blame that lay at the heart of the investigation, but the typicality of the debtor's behaviour. What mattered was whether the debtor had acted in a manner that was typical for a person to whom "fault" could be attributed. This was the case, particularly, where he had brought about by his own act (factum) the destruction of the object, which he knew or ought to have known he was bound to deliver.²³ Thus, for instance, a promisor who killed the slave he owed continued to be bound: "...

"[C]ulpa, quod ad stipulatorem attinet, in faciendo accipienda sit, non in tion facicndo... quia qui dari promisit, ad dandum, non faciendum tenctur."²⁶

This is a slightly formalistic argument: the promisor is required merely to convey the slave (dare), not to perform any other activity (facere); hence there can be no liability for a non-facere such as failure to provide medical treatment. But the solution appears to have been controversial,

²‘D. 45, 1,91,3.

³² Cf. particularly Cannata, Colpa, pp. 90 sqq.; Geoffrey MacCormack, "Culpa", (1972) 38 SDHI123 sqq; Kaser, (1980) 46 SDHI93 sqq.

³ Cannata. Colpa, pp. 90 sqq.; Geoffrey MacCormack. "Factum debitoris and culpa debitoris". (1973) 41 TR 59 sqq.

^a Paul D. 45. I. 91 pr.

³ Cf. MacCormack. (1973) 41 TR 68. who lists the following possibilities: "The promisor, aware of the promise, may deliberately kill the slave in order to prevent his acquisition by the promisee; or temporarily unmindful of the promisee he might kill him in a fit of anger. Or he might bring about the death of the slave through some careless act. In all these cases it can be held that the promisor has been at fault.

^2t> Paul EL 45, 1, 91 pr.

and even Paulus cannot be seen as having ruled out in principle liability for behaviour other than a factum.^{[4041] [4042]}

(d) Mora debitoris

"Quotiens culpa mtervenit debitoris, perpetuari obligationem": this statement applied to cases where the promisor's "fault" related to the event which made his performance (objectively) impossible. But it was also applicable in another situation. Even if the promisor had not himself brought about his inability to convey what he had promised: that is, even if the object in question perished accidentally, he was still held liable if he had delayed performance beyond the due date (mora debitoris). Mora debitoris, too, was based on culpa^2H and therefore justified perpetuation of the promisor's obligation; for in a certain, albeit somewhat indirect sense, the supervening impossibility was still attributable to the debtor's behaviour. Since it entailed an extension of the debtor's liability, the requirements for mora debitoris had to be specified, and it thus became the second type of "breach of contract" giving rise to liability for "quanti ea res est".

(e) Deterioration of the object promised

Performance, of course, need not be completely impossible; the debtor may still be able to transfer the object promised, but the object may have deteriorated in the meantime. If such deterioration was attribut­able to the promisor, performance no longer terminated his liability: "... qui hominem dari promisit et vulneratum a se offert, non liberatur."^[4043] Again, the promisor's obligation was "perpetuated" fictitiously, for the "rem dare oportere" of the intentio was deemed not to have been satisfied, although the (defective) object had in fact been handed over. As a result, performance could still be demanded: "... adhuc tamen ipsa res petenda est."^[4044] When it came to the assessment of "quanti ea res est", the judge was, however, probably required to take into account the value of what the stipulator had received;^[4045] thus, in the end, he obtained judgment for the difference in value between the object as it actually was and as it should have been.

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