1. The construction of resolutive conditions

"If a legal transaction is entered into subject to a resolutive condition, the effect of the transaction lapses upon fulfilment of the condition; at this moment the former legal position is restored."

With these words the BGB¹⁰² introduces the second type of condition recognized by most modern legal systems.¹⁰³ The Roman lawyers did not put it quite like that when they referred to an arrangement by the parties, according to which a contract was to be resolved upon the occurrence, or non-occurrence, of a future uncertain event.

^1C0 Ulp. D. 50, 17, 161; cf. also lul. D. 35, 1, 24; on which see Kakhthaler, op. cit., note 9, pp. 25 sqq.; Masi, Condizione, pp. 220 sqq. Another fiction, incidentally, that came to be recognized in post-classical, but possibly even in classical law, remained confined to the law of testamentary dispositions: a condition is held to be satisfied if the potential beneficiary was prevented from actual satisfaction due to circumstances which were outside his control (si per eum non stat, quominus impleatur); cf. UE 2, 6; Hermog. D. 35, 1, 94; Paul. D. 40, 7, 20, 3;Masi, Condizione, pp. 227 sqq.; Kaser, RPrl, p. 257; idem, RPr II, p. 97; for a modern comparative discussion, see A.B. Schwarz, "Bedingung", in: Franz Schlegelberger (ed.), Rechtsverqleichetides Handworterbuch fur das Zivil- und Handelsrecht des In- und Auslandes, vol. II (1929), pp. 415 sqq.

ⁿ However, the German legislator attempted to specify the manner in which fulfilment of the condition had to have been prevented and therefore added the words "in violation of the precepts of good faith" ("wider Treu und Glauben"), He thus appears to have restricted the application of the "prevention equals satisfaction" rule. Yet this was not his intention; on the contrary, he devised this clause in order to emphasize the width of its range of operation; for a detailed analysis, see Knutel, 1976 Juristische Blatter 613 sqq., 616 sqq.

¹⁽² § 158 II.

^ICß For South African law, cf. Joubert, Contract, pp. 172 sq.; generally, see Schwarz, op. cit., note 100, pp. 395 sqq.

“ Ulp. D. 18. 3. 1.

^1,15 Ulp. D. 18. 1. 3.

with these nhrases, that the sale itself was subject to a (resolutive) condition?¹ Or did they not rather regard the sale as unconditional, yet accompanied by an informal pactum, according to which the contract was under certain circumstances to be dissolved?^{[3735] [3736] [3737] It would then have been this dissolution pactum[3738] which was subject to a condition, in the ordinary (Roman) sense of the word: it was supposed to become effective only upon the occurrence, or non-occurrence, of a future uncertain event. This is the kind of construction which Ulpian appears to have in mind in D. 18, 2, 2 pr., where he describes the situation in the following terms: "... pura emptio est, sed sub condicione resolvitur. "[3739] But we should be careful not to read all too subtle nuances into our sources and to use one or another specific turn of phrase as a basis for substantive distinctions.[3740] Even if—as appears to me more likely—the Roman lawyers at least originally[3741] tended to regard the resolutio venditionis as being sub condicione (suspensiva), they thereby recognized the possibility of subjecting a contract of sale to what in actual fact and for all practical purposes amounted to resolutive conditions.[3742]}

2.