Forfeiture of the penalty

(a) If no time has been set for performance

That sounds simple enough, but the latter situation especially gave rise to intricate problems of interpretation. What if no time had been set within which the act was to take place?⁵³ One can think essentially of two solutions, and both were advocated in Roman law.

According to Sabinus, the penalty became exactable if what had been promised was not done immediately ("statim").⁵⁴ Pegasus preferred an interpretation more favourable to the debtor: in his opinion, the debtor had to pay the penalty only if and when it had become impossible to carry out the act.⁵⁵ Papinian, who relates this dispute,⁵⁶ distinguishes between the two solutions. With regard to genuine conventional penalties, he follows Sabinus. The main obligation ("In Capitolium ascendere spondes?" "Pamphilum dari spondes?") is due immediately: quotiens dies non ponitur, praesenti die debetur.⁵⁷ It would, therefore, frustrate the purpose of the penalty clause to quite a considerable extent if the penalty became due only at a much later date and not as soon as the debtor had not availed himself of the first opportunity to act. This reasoning is based on the accessory nature of the genuine penalty clause and does not apply to non-genuine conventional penalties. Here Papinian comes to share Pegasus' view and, in doing so, adopts a very literal interpretation of the conditional clause. For, strictly speaking, the condition "si in Capitolium non ascenderis" can be said to have been fulfilled with any degree of certainty only when it has become impossible for the promisor to climb the Capitol. This approach is in accordance with the general principle of interpretatio contra stipulatorem:⁵⁸ had the stipulator wished the penalty to be due immediately, he could (and should) have said so expressly.⁵⁹

However, even where a time had been set within which the act had to be performed, problems could arise.

Did the stipulator have to wait

" Otherwise, expiry of the time set for performance would mark the forfeiture of the penalty: Pomp. D. 45, 1, 27, 1.

³⁴ Sab./Pap. D. 45, 1. 115, 2: "Item si quis ita stipuletur: 'si Pamphilum non dederis, centum dari spondes?'... Sabinus... existimabat ex sententia contrahentium, postquam homo potuit dari, confestim agendum...."

^|5 Peg./Pap. D. 45, 1, 115, 2: "Pegasus respondit non ante committi stipulationem, quam desisset posse Pamphilus dari."

^s Pap. D. 45. 1. 115. 2.

³⁷ For this principle, see Ulp. D. 45. 1. 41. 1: Pomp. D. 50. 17. 14: cf. also Inst. HI. 15. 2.

³³ Vide infra, pp. 639 sq.

⁵⁹ See, too, Knutel, Stipulatio poenae, pp. 131 sq. until the time had lapsed (that is, for two years in our example above), even if it had already become clear that the act had become impossible?

" 'Insulam intra biennium illo loco aedificari spondes?' ante finem biennii stipulatio non committitur, quamvis reus promittendi non aedifkaverit et tantum residui temporis sit, quo aedificium extrui non possit; neque cnim stipulations status, cuius dies ccrcus in exordio fuit, ex post facto mutatur."^[566]

Here it had become impossible to erect the building within whatever time remained of the two years the promisor had originally been given. Nevertheless, the penalty was due only after the full period had lapsed. According to Papinian, the status of the stipulation cannot be changed by subsequent events. Paulus decided likewise, but gave a different reason: "... tota enim obligatio sub condicione et in diem collata est."^[567] Forfeiture of the penalty was subject not only to a condition but also to a time clause ("dies"); the fact that the condition had been satisfied did not entail that the time, too, had lapsed.

(b) "Si per debitorem stetit..."

The most intricate question, however, as far as forfeiture of the penalty was concerned, related to a more general question: did the penalty become due when the condition was (objectively) fulfilled or did forfeiture also depend upon a subjective requirement, so that it would have occurred only where the promisor was in some way responsible for the non-fulfilment?

Our sources do not provide us with a clear and distinct picture; consequently, a number of theories have been developed by modern writers as to the position in classical Roman law.^[568] ^{^[569] But here, as in many other cases, one would be missing the casuistic nature of Roman law were one to try to extract a uniform, general rule from the available texts.}

Generally speaking, there seems to have been a development from a very strict and formalistic to a more subjective and equitable (that is, debtor-oriented) approach, stimulated by Sabinus (who is quoted in the following terms:.. et tamdiu ex stipulatione non posse a^i, quamdiu per promissorem non stetit, quo minus hommem daret'j and promoted by his school.^[570] The Proculians at first carried on to proceed from the principle of objective liability,^[571] but after Celsus abandoned it in favour of the Sabinian view^[572] it seems to have become the prevailing opinion that the penalty was exactable only if the debtor was responsible for the performance or non-performance of what had primarily been envisaged by the parties. This responsibility was usually expressed in the words "Si per debitorem stetit quo minus (daret, non daret, veniat etc.)": a flexible concept that varied according to the standard of liability applicable in the particular context and therefore did not necessarily entail fault in the modern sense.^[573] In similarly broad terms ("si per creditorem stetit,...") even the Proculians had already excluded liability for the penal sum, where forfeiture had its origin in the creditor's sphere.^[574] However, some exceptional cases of "strict" liability continued to exist, and, especially with regard to the oldest type of penal promises, the cautio vadimonium sisti, the new approach never seems to have been adopted, probably because protection of the debtor had already been ensured by praetorian intervention.^[575] A variety of exceptiones was available to him, on the basis of which he could allege, for instance, that he had been prevented from reappearing in court owing to dolus malus of the plaintiff or "valetudine vel tempestate vel vi fluminis";^[576] where he had failed to do so "si ab alio sit impeditus",^[577] the penalty was payable, but he was granted an action for damages against that third party. Today the penalty can generally be exacted only if the debtor has been at fault in not fulfilling his contractual obligations;^[578] the parties can, however, provide differently.

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

Forfeiture of the penalty

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