Changes in post-classical law

Still, however, the principle that the third party could not acquire a right was maintained. This began to change only in late classical imperial law. Here we find texts such as C.

"Quotiens donatio ita conficitur, ut post tempus id quod donatum est alii restituatur... benigna iuris interpretatione divi principes ci [in quem liberalitatis compendium conferebatur] utilem actionem iuxta donatoris voluntatem competere [admiserunt]."

A donatio sub modo had been concluded; the donee had to pass on the donation to a third party after a specified period. According to ius vetus, neither the donor (a donee charged with a modus could, as a rule, be sued for performance only if the modus had been strengthened by stipulation) nor the third party had an action to enforce the agreement. Under these circumstances, the emperors granted an equitable action to the third party.^[177] This recognition of a genuine agreement in favour of a third party constituted the first direct inroad into the "per extraneam personam nobis adquiri non posse" principle. The authenticity of this text is borne out by the Fragmenta vaticana.^[178] We find a series of other cases in the Codex and even in the Digest,^[179] as, for example, Ulp. D. 13, 7, 13 pr.,^[180] where an actio in factum is granted to a pledgor after the pledgee, in the course of selling the pledged object, had agreed with the purchaser that the debtor should be able to redeem his object from the purchaser; there is also C. 3, 42, 8,^[181] where the two parties to a depositum had arranged that the depositee should return the property, not to the depositor, but to a third party, and where this third party is given an actio deposit! utilis.^[182] But these texts are all very probably interpolated. They show, however, that by the time of Justinian the range of exceptions to the classical principle had been considerably increased. Thus, the compilers had brought a certain amount of inconsistency and confusion into the sources.^[183] While still retaining and even emphasizing the principles of "alteri stipulari nemo potest" and "per extraneam personam nobis adquiri non potest", they had taken over, extended or introduced a number of situations in which these principles did not apply. Reconciliation and harmonization of the sources in later times therefore became a difficult and cumbrous undertaking. Also, some of those exceptions lent themselves to an unhinging of the principles. Thus, the history of the contract in favour of a third person is rather varied and eventful.^[184]

4.