Dies certus and dies incertus quando

A conditional obligation is subject to the occurrence, or nonoccurrence, of an event both future and uncertain. If it is certain that the event will happen, we are not dealing with a condition but with a time clause (dies).¹⁵⁸ When it will happen may either be certain ("on the kalends of October") or uncertain ("on the death of Stichus"): as long as the futurity is certain to arise, we are still dealing with a dies.

A clause of the type "on the kalends of October" is usually referred to as a dies certus; its opposite is the dies incertus quando. The latter could pose an interesting problem for the Roman lawyers. If it was not the death of Stichus, or of some other third party, but rather the demise of either of the contracting parties themselves that had been chosen as determinative dies, the obligation could become enforceable only by or against the heir of one of them—a result which would have been in conflict with the rule against contracts in favour, or to the detriment, of third parties. A stipulation of the type "post mortem meam dari spondes?" or "post mortem tuam dari spondes?" was therefore void.^{1 9} "Pridie quam moriar [or: morieris] dan spondes?" was also frowned upon,¹⁷⁰ for the day before someone dies can be identified only once the death has actually occurred; in substance, therefore, the situation was again as if the stipulation had been in favour, or to the detriment, of the heir. Yet a promise of performance "cum moriar [or: morieris]" was valid, for it was construed to begin at the last moment of the stipulator's, or the promisor's, life.^[3794] ^{^[3795] ^[3796] 2.}

<< | >>

↑

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

Dies certus and dies incertus quando

More on the topic Dies certus and dies incertus quando: