Positive and negative conditions

"Si Titius consul factus fuerit" and "Si in Capitolium ascendero" were positive conditions: something had to happen before the respective obligations could become effective.

It was equally possible, however, to make the operation of an obligation dependent upon a particular event not happening. Of these negative conditions it was the negative potestative condition that could throw up a special problem. "Si in Capitolium non ascenderit", "Si Stichum non manumi- serit"^{[3688] * [3689]}—conditions of this type would often be satisfied only with the death of the prospective creditor; for before his life's pilgrimage had finally been completed, one could rarely be certain that he might not perhaps one day still decide to saunter up Capitol hill. Yet, the moment of death was hardly the most apposite time to let him receive the reward for his abstention. It was the great Quintus Mucius Scaevola, the most famous representative of the "veteres" jurisprudence, who devised a way out of this predicament. A testator had bequeathed something to his wife under the condition that she would not remarry. Strictly speaking, the bequest would become effective only when she died without having contracted another marriage. Yet, Mucius reversed the position.^[3690] The widow, he opined, was to be given the legacy immediately, but she had to undertake to return it if she did, in fact, remarry. This undertaking took the form of a stipulation and came to be referred to as the cautio Muciana. It enabled the legatee to enjoy what had been left to her whilst she was still alive; at the same time considerable pressure was brought to bear upon her to comply with the condition set by the testator. Obviously this was a most satisfactory solution that commended itself to be extended; and the Roman jurists appear, indeed, to have availed themselves of the cautio Muciana wherever a negative potestative condition was included in a will,⁴⁷ even if the question of its satisfaction or otherwise might already become determinable during the lifetime of the (conditional) beneficiary.⁴⁸

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More on the topic Positive and negative conditions:

1. 'Positive' Breach of Contract[252]
2. Interpretation of conditions
3. Economic conditions
4. Living conditions in Rome
5. Conditions and Terms in Contracts
6. Impossible, illegal and immoral conditions
7. Conditions in general
8. Economic Conditions
9. Economic conditions
10. Economic conditions
11. RESOLUTIVE CONDITIONS