Impossible, illegal and immoral conditions
Conditions were, furthermore, subject to three rather self-evident restrictions: their realization had to be possible and they had to be untainted by illegality or immorality. "Si digito caelum attigero, [centum] dare spondes":[3667] this was an (objectively) impossible condition ("condicio...
cui natura impedimento est, quo minus existat"),[3668] for no one can possibly touch the sky with his finger. As a result, the "si" clause was invalid ("impossibilium nulla est obligatio").24 Did this partial invalidity affect the remainder of the transaction ("centum dare spondes")? Obviously it did, for the promisor can hardly be taken to have intended to be bound, without further ado, to pay a sum of one hundred. This obligation depended on something else being achieved first and if that event could not take place, the whole transaction had lost its basis. "[I]nutilis est stipulatio",[3669] was therefore the appropriate answer and it appears to have been obvious to the Roman lawyers that a mechanical application of the "utile per inutile non vitiatur" rule[3670] would not have made sense in these cases. Matters looked different, however, when it came to impossible conditions contained in testamentary dispositions. Take, for instance, the case where Lucius Titius was instituted heir "si... Fulvia filia mea viveft]".[3671] As it happened, the testator had never had a daughter named Fulvia. Here it could, as a rule, be assumed that the average, reasonable testator would rather have wanted his disposition in favour of Lucius Titius to stand without any strings attached to it than face the prospect of having his whole will set aside; the dreaded state of intestacy[3672] would then have ensued. Thus, it was ultimately the general favor testamenti that induced the Roman lawyers to strike out merely the invalid part of the will, even where this invalid part was in the nature of a condition.[3673] [3674]The position was the same as far as illegal or immoral conditions were concerned. If they had been added to a will, they were simply struck out:
"Condiciones contra edicta imperatorum aut contra leges aut quae legis vicem optinent scriptae vel quae contra bonos mores vcl derisoriae sunt aut huiusmodi quas praetores improbaverunt pro non scriptis habentur."10
Thus, for instance, a person became heir even if he had been instituted under the condition that he divorce his spouse,[3675] or that he throw the remains of the testator into the sea,[3676] and irrespective of whether or not he had complied with these rather cranky demands of the testator. Stipulations as well as consensual contracts, on the other hand, were rendered invalid (in toto) on account of immoral or illegal conditions attached to them.
3.
More on the topic Impossible, illegal and immoral conditions:
- Positive and negative conditions
- Interpretation of conditions
- Economic conditions
- Living conditions in Rome
- Conditions and Terms in Contracts
- Conditions in general
- Economic Conditions
- Economic conditions
- Economic conditions
- RESOLUTIVE CONDITIONS
- Conditions contra bonos mores and late classical jurisprudence
- The admissibility of resolutive conditions
- 1. The nature of suspensive conditions
- Social and Economic Conditions
- 1. The construction of resolutive conditions
- The effects of resolutive conditions