Conditions and Terms in Contracts

It was not unusual in Roman law for the parties to subject their contract to certain qualifications. The most important of these were condicio (condition), dies (period of operation) and modus (burden).

4.3.4.1 Condicio

Virtually any legal act and thus also a contract could be rendered subject to a condition or an uncertain future event.^{^[613]} The effect of the legal act was then made dependent upon the occurrence of the unforeseeable future event.

A distinction must be made between suspensive and resolutive conditions. When a suspensive condition was attached to a contract the relevant obligation arose only if and when the condition was fulfilled.^{^[614]} Until this event happened there was no obligation but merely an expectation or hope (spes) that the contract would produce its intended result. It should be noted, further, that a partial fulfilment of a suspensive condition was not sufficient: to trigger the operation of the contract the fulfilment had to be complete and unqualified.^{^[615]}

A legal act subject to a resolutive condition came into effect immediately, but was terminated as soon as the condition had been realized.^{^[616]} It follows that when such a condition was attached to a contract the obligation to perform arose immediately but was extinguished the moment the condition was fulfilled.^{^[617]}

A condition could be stated positively, when its fulfilment depended upon the occurrence of a future uncertain event, or negatively, when its fulfilment depended upon such future event not taking place.

Furthermore, the fulfilment of a condition might be within the control or discretion of one or the other of the contracting parties, in which event the condition was known as a potestative condition (condicio potestativa).^{^[618]} On the other hand, a casual condition whose realization was independent of the will or discretion of the parties and entirely dependent on chance was referred to as condicio casualis. A condition was called ‘mixed’ (condicio mixta) if its fulfilment partly depended upon, and was partly independent of, the will of the interested party, as, for instance, when it depended partly on the will or discretion of a third party or a natural event.^{^[619]} It should be noted that under certain circumstances a condition was fictitiously considered to have been realized, namely when the party who had an interest in the fulfilment thereof had intentionally hindered such fulfilment.^{^[620]}

Roman">An impossible condition attached to a contract or other juristic act caused the whole contract or juristic act to be null and void,^{^[621]} and the same was the case with conditions tainted by illegality or immorality.^{^[622]} On the other hand, where the coming into effect of a contract or other juristic act was made subject to an event that had already occurred or was certain to occur, the relevant condition was simply ignored or treated as unwritten (pro non scripto).^{^[623]}

4.3.4.2 Dies

A contract or other legal act could also be made subject to a time clause (dies) by means of a provision elaborating that the act would come into effect or terminate after the lapse of a specified period of time. In contrast with the condicio noted above that related to the incidence of an uncertain or unforeseeable future event, the dies thus related to the occurrence of a certain future event.

A distinction must be drawn between suspensive and resolutive time clauses.

A suspensive time clause suspended the legal effect of the legal act until the term was completed.^{^[624]} It follows, therefore, that when such a clause was attached to a contract, the relevant obligation came into operation immediately but its execution could be enforced only at the time of completion of the term.^{^[625]} A resolutive time clause, on the other hand, terminated the effect of the legal act when the prescribed period of time elapsed. When such a clause was embodied in a contract, the relevant obligation thus arose immediately but was extinguished as soon as the term was completed.^{^[626]}

A further distinction can be drawn between dies certus and dies incertus. Although in either case the future event was considered certain to occur, in the former case the day on which the event would take place was fixed^{^[627]} whilst in the latter there was uncertainty as to exactly when that day would eventuate.^{^[628]}

4.3.4.3 Modus

Modus was another type of condition sometimes attached to certain juristic acts, such as donations, manumissions of slaves and legacies^{^[629]}: it denoted a charge or burden imposed on the beneficiary. An example of the modus was the case where a person was given a legacy on the understanding that he maintain the testator’s grave or have a monument erected in his memory. Otherwise than in the case of condicio, the acquisition of the benefit was not dependent on the execution of the charge and thus the beneficiary acquired the benefit immediately. Moreover, in classical law a modus does not appear to have created a readily enforceable obligation on the part of the beneficiary. However, in later law it was recognized that any interested party or, in the absence of such party, the state or church could enforce the charge.^{^[630]} The view that the modus created an enforceable restriction on a juristic act became prominent in the time of Justinian, who also introduced the possibility of recovering the benefit in the event that the beneficiary did not execute the charge.^{^[631]}

4.3.5

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Source: Mousourakis G.. Fundamentals of Roman Private Law. Springer, 2012.— 366 p.. 2012

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