Semel commissa poena non evanescit

(a) The Celsinian interpretation

Roman law, as we have seen, did not provide for the reduction of excessive conventional penalties. This did not mean, however, that the Roman lawyers were totally unsympathetic towards the debtor and did not develop ways and means to assist him against creditors claiming the penalty.

Semel commissa poena non evanescit:^[606] a penalty, once payable, will not subsequently fall away. This sounds like a very general statement, but it would be wrong to take it as a hard-and-fast rule of Roman law. It was restricted owing to a very bold and flexible interpretation of penalty clauses, which goes back to Celsus^[607] (who is generally regarded as one of the most original thinkers among the Roman lawyers). He drew a distinction according to whether the penalty clauses in question contained a reference to a specific date up to which performance had to have been made or not. To take a compromissum between Gaius and Seius as an example, the promise might have been something like: "Si quid adversus sententiam arbitri factum erit sive quid ita factum non erit, centum dari spondes?". "Spondeo." The arbiter might then have decided that the slave, Pamphilus, had to be given to Seius; just as well he might have requested Gaius more specifically to hand the slave over before the tenth of October.

One might ask whether such an interpretation did not both unduly prejudice the interests of the creditor¹⁰⁵ and disregard the "in terrorem" function of the penalty. But the creditor was allowed to reject any performance tendered after the lapse of modicum tempus, if his interest in receiving it had fallen away in the meantime.¹⁰⁶ Also, it was in his hands to force the debtor either to make performance or to pay the penalty; once modicum tempus had passed, he could resort to litigation and thus preclude the debtor from unilaterally purging forfeiture. As far as the penalty itself is concerned, it seems to have fulfilled its "in terrorem" function if the debtor had rendered performance; if he had

erit, licet postea offeratur, attamen semel commissam poenam compromisse non evanescere, quoniam semper verum est intra kalendas datum non esse: sin autem oblatum accepit, poenam petere non potest doli exceptione removendus." Cf.

^1M Kaser, RZ, pp. 225 sq.

Because, as a consequence of this interpretation, he had to accept the belated performance. Ifhe did not do so (that is, if the fulfilment of the condition was brought about by the party to whose advantage it operated), the condition was deemed not to have been fulfilled. Vide infra, p. 729.

¹⁰⁶ Paul. D. 4, 8, 22.

finally done what was expected of him, the enforcement of what was designed to put pressure on him surely must be out of place.¹⁰⁷

(b) Praetorian intervention

In the second of the above-mentioned cases, however, there was no room for such a flexible approach. Where a specific date had been set and the penalty become payable at that time, subsequent performance could no longer change this situation. Thus it is only in these instances that "semel commissa poena non evanescit" becomes relevant. But even here it was not applied as a general rule of a binding character, for now and then we find the praetor coming to the rescue of the debtor, even where, according to the unequivocal wording of the stipulatio, the penalty had become payable. He was prepared to grant an exceptio doli where it seemed unreasonable of the creditor to enforce the penalty, even though his position had not really been adversely affected by the delay in performance.¹⁰⁸ Another very interesting instance of praetorian intervention is Ulp. D. 2, 11, 9, 1:

"Si plurium servorum nomine iudicio sistendi causa una stipulatione promittatur, poenam quidem integram committi, licet unus status non sit, Labeo ait, quia verum sit omnes statos non esse: verum si pro rata unius offeratur poena, exceptione doli usurum eum, qui ex hac stipulatione convenitur."

Here obviously an actio noxalis¹⁰⁹ had been brought; the defendant had promised, by way of a cautio, vadimonium sisti, (re)appearance in court of the several slaves in question.

¹¹¹ In a similar vein, see Kmitel. (19751 175 Archivfiir die civilistische Praxis 56 sq.

^1(B Paul. D. 21. 2. 35: "Evictus autem a creditore tunc videtur. cum fere spes habendi abscisa est: itaque si Scrviana actione evictus sit, committitur quidem stipulatio: sed quoniam soluta a debitore pecunia potest servum habere, si soluto pignore venditor conveniatur. poterit uli doli exceptione." For a very interesting parallel in the old English common law (to which Professor R. Kniitel, Bonn, has drawn my attention), see the decision by Bereford CJ in Umfraville v, Lonstede YB 2 and 3 Edw II (Seiden Society) 58 and the comment by F.W. Maitland in his Introduction (p. xiii) to this volume: "A man has bound himself to pay a certain sum if he does not hand over a certain document on a certain day. Being sued upon his bond, he is unable to deny that he did not tender the document on the day fixed for the transfer; but he tenders it now, excuses himself by saying that he was beyond the sea, having left the document with his wife for delivery, and urges that the plaintiff has suffered no damage.... To our surprise, Bereford CJ... exclaims: 'What equity would it be to award you the debt when the document is tendered and you cannot show that you have been damaged by the detention?' (Quel equite serra de awarder a vous le dette de pus que I'escrit est prest, si vous ne porriez monstrer que vousjustes endamage par la detenue?) In the end the plaintiff is told that he will have to wait seven years for his judgement. Here certainly we seem to see 'relief against penalties' and relief that is granted in the name of 'equity', though it takes the clumsy form of an indefinite postponement of that judgement, which is dictated by the rigours of the law."

¹⁰⁴ On which see infra pp. 916 sq., 1099 sq., 1118 sq. penalty in case of part performance; this idea was, later on, adopted by the French legislator and provided the historical basis for the ins moderandi, "lorsque l'engagement a ete execute en partie", contained in art. 1231 of the code civil.^{1 0}

¹¹⁰ Already in its original form, i.e. before the alteration in 1975. Cf. also art. 1384 codice civile.