Interpretation of conditions

(a) General considerations

We have been looking at the consequences of the satisfaction of conditions. But when were conditions satisfied? This depended entirely on how they were drafted and what they were intended to achieve; it was, in other words, a matter of interpretation.

In many cases the issue was straightforward. Under a stipulation of the type "Si Capitolium ascenderis, quinque aureos dare spondes?" the five gold coins became exactable if the stipulator had walked up Capitol hill; where the stipulation said "Si intra biennium Capitolium non ascenderis, quinque aureos dare spondes?",^[3725] the same sum could be claimed if within the next two years the stipulator did not in fact embark on that ascent. But we have already come across examples where the matter was much more difficult to determine—as in the case of a negative potestative condition that did not set a time within which the stipulator had to act if he did not want to pay the money ("Si in Capitolium non ascenderis...").^[3726] Generally speaking, the classical Roman jurists adopted a flexible rather than a formalistic approach towards the interpretation of conditions.^[3727] Ambiguities in stipulations, as usual, tended to be resolved contra stipulatorem;^[3728] with regard to testamentary dispositions, the general favor testamenti prevailed^[3729] and in the case of conditional releases from slavery (whether by last will or on account of a transaction inter vivos), the jurists were guided by the favor libertatis.⁹⁰

(b) Interpretatio infavorem libertatis

Historically the most significant example of such an interpretatio in favorem libertatis concerned the statuliber. This was a slave manumitted in a testament upon the condition that he would pay a certain sum of money to the heir;⁹¹ this money, obviously, he normally had to take from his peculium.

Now, it could happen that at the time when the testator died the slave did not have the necessary sum available to effect his release, because, for instance, a third party had failed to repay a loan he had been given by the slave. In cases of this kind it was up to the heir to sue the borrower: he was the slave's new master and was thus, formally, in charge of the peculium. Of course, no legal duty was incumbent on him to collect the debt; but if he failed to do so, he effectively prevented the condition from materializing. This was not to be welcomed; for at one and the same time, he thus frustrated the expectation of the statuliber to attain his freedom and the testator's true intention—which had, typically, been to make over to his heir the value of the slave, rather than the slave as such. Under these circumstances, Servius⁹² was prepared to read a tacit proviso into the condition that had been set by the testator:⁹³ the slave was to be released upon payment of a certain sum of money, or if the slave's failure to render such payment was attributable to the heir. Or, to put the same idea slightly differently: the condition was treated as if it had in fact been satisfied, if the heir had himself prevented it from materializing.⁹⁴ It was in this form that the rule came to be generalized. "[Qjuibus

⁴⁰ For details, see Masi, Condizione. pp. 227 sqq.

For details, see Guido Donatuti, Lo statidibero (1940); Kaser, RPr I, p. 114.

‘’²CfUlp. D. 40, 7, 3, 2.

⁴³ Cf. also Watson, Obligations, pp. 1 sq. ("implied term"); Knutel, Stipulatio poenae. pp. 211 sq. Both authors deal with Ulp. D. 22, 2, 8, where Ulpian, once again, refers lo Servius, this time for the proposition that a penalty cannot be claimed if the event upon which its forfeiture has been made dependent was brought about by the stipulator ("Servius ait pecuniae traiecticiae poenam peti non posse, si per creditorem stetisset, quo minus earn intra certum tempus praestitutum accipiat").

This is the historical origin of the rule embodied in § 162 II BGB: "If the fulfilment of a condition is brought about in bad faith by the party to whose advantage it would operate, the condition is deemed not to have been fulfilled." For South Africa, cf. Joubert, Contract, p. 177; "By parity of reasoning the same principle can be applied where the party who would be a creditor upon fulfilment actually ensures fulfilment of the condition contrary to the intention of the parties." As far as classical Roman law is concerned, cf. also Modest. D. 46, 1, 41 pr. (dealing with fideiussio indemnitalis; on which see supra, pp. 137. 140, 142), as interpreted by Rolf Knutel, "Zur Frage der sog. Diligenzpflichten des Gläubigers gegenüber dem Bürgen", in; Festschrift für Werner Flume, vol. I (1978), p. 568 sqq., 570.

⁹⁴ Cf. also UE 2, 5; "Si per heredem liictum sit, quo minus statu HBer condicioni pareat, proinde fit liber, atque si condicio expleta fuisset"; see further UE 2, 4, another decision in favorem libertatis, attributed by Ulpian to the XII Tables already. On the favor libertatis as motivation for the decisions concerning the statuliber, cf. also Kalchthaler, op. cit., note 9, pp. 53 sqq. exemplis stipulationis quoque committi quidam recte putaverunt, cum per promissorem factum esset, quo minus stipulator condicioni pareret", as Julian reports.^{^[3730]}

But what was recognized with regard to formal declarations (wills, first of all, then stipulations) was also, of course, applicable in the case of emptio venditio and other informal transactions. Here the equation of prevention with satisfaction—quite in line with the bonae fidei nature of these contracts—found an even broader field of operation. Take, for example, the case where a library is sold upon condition that the municipality sells to the purchaser the necessary ground to put it up.^[3731] This is what Justinian would have referred to as a condicio mixta: the municipality had to be prepared to make a site available but the purchaser had to do his bit too; unless, at least, he asked for a suitable site to be sold and transferred to him, there was no chance that the condition would materialize.

The purchaser's cooperation towards the perfection of the sale was not, of course, enforceable; but if he failed to render it, the condition was treated as satisfied and the vendor was able, as a result, to bring the actio venditi. Why he had prevented the condition from materializing was relevant only in so far as his failure to act had to have been "attributable" to him; the standard expression used in this context was "si per emptorem steterit quo minus impleatur".^[3732] That implied neither an intention to defraud the other party nor plain dolus or even fault at large, in the sense of personal blame.^[3733] Provided only that the reason for the non-perfection of the sale fell within his sphere of responsibility, the purchaser's refusal to treat the contract as valid was seen, apparently, as an infringement of the precepts of good faith.^[3734]

How could all these cases (the one involving a will, the other a unilateral contract, the third a contract of sale) be reduced to one common denominator? What was objectionable, and had thus led the jurists to apply the fiction, was the fact that satisfaction of the condition was prevented by a party who had an interest in its non-fulfilment; but for the satisfaction of the condition, the heir did not have to release the slave, and promisor as well as purchaser were under no obligation to pay. The general rule that eventually emerged was therefore formulated in the following terms:

"In iure civili rcceptum est, quotiens per eum, cuius interest condicionem non impleri, fiat quo minus impleatur, perinde haberi, ac si impleta condicio fuisset."¹⁰⁰

Or, as the fathers of the German BGB were to put it: if the fulfilment of a condition is prevented by the party to whose disadvantage it would operate, the condition is deemed to have been fulfilled.¹⁰¹

III.

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

Interpretation of conditions

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