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? 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 said^[3691] 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"^[3692]—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.^[3693] ^{^[3694] If performance had mistakenly been rendered, it was recoverable by means of a condictio indebiti, 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";^[3695] the reason either being that the Roman lawyers treated this "condition" as a dies^[3696] 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").^[3697] A conditional contract of sale, as we have seen, was not "perfecta"^[3698] 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.^[3699] A person who had transferred ownership sub condicione remained, for the time being, owner of the object.^[3700] 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.^[3701] ^{^[3702] ^[3703] (b) Die 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 obligation^[3704] and it could also be secured by way of a pledge.^[3705] 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,^[3706] if it was a tract of land he could not dedicate a part of it as locus religiosus.^[3707] Again it was argued that neither the death of the transferor nor that of the transferee, pendente condicione, had any impact on the situation:^[3708] the respective heirs found themselves in exactly the same position as their deceased predecessors. Again, therefore, a rather secure expectancy^[3709] ^{^[3710] resulted from the conditional transaction. 7.}}

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

Condicio pendet

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