The effect of satisfaction of the condition
(a) Operation ex nunc
Closely related to the question of how to determine the legal relationship between the parties during the state of pendency was the second of the above-mentioned issues; for if one were to accept that satisfaction of the condition generally had a retroactive effect, this could, at least to some extent, and with regard to certain problems, obviate the necessity of postulating preliminary effects pendente condicione.70 Again, the attitude adopted by the Roman lawyers appears to have been rather equivocal·[3711] and the conflicting views expressed in our sources have given rise to lively controversies among modern scholars.
Thus, on the one hand, we read: "Si rem meam sub condicione stipuler, utilis est stipulatio, si condicionis existentis tempore mea non sit"[3712]—if I enter into a conditional stipulation that I be given my own property, the transaction is valid if the property has ceased to be mine at the time of satisfaction of the condition. Obviously, therefore, it is to this time, not to the moment when the contract was concluded, that we must look in order to determine its validity. The same view was adopted, with regard to a contract of sale, by Marcellus in D. 18, 1,61: "Existimo posse me id quod meum est sub condicione emere, quia forte speratur meum esse desinere." There is still the prospect that the object of the sale, upon fulfilment of the condition, might no longer belong to the purchaser. If that should indeed turn out to be the case, the sale is valid.(b) Retroactive effect
But then there is a variety of texts which appear to suggest that satisfaction of the condition had a retroactive effect. Some of them were quite generally phrased. "...in stipulationibus id tempus spectetur quo contrahimus", Paulus is reported to have opined[3713] and this statement was even elevated by the compilers to the status of a regula iuris antiqui.[3714] With regard to the contract of sale we have a passage, credited also to Paul, in which the position after satisfaction of the condition is described as "quasi iam contracta emptione in praeteritum"[3715]—as though the contract were related back to the time of the initial agreement.
Other decisions deal with more specific issues. Here we may turn again to Gaius D. 20, 4, 11, 1, the case that dealt with a hypotheca aimed at securing a conditional stipulation.[3716] A conditional debt, as we have seen, provided an adequate basis for a valid pledge;[3717] but that pledge itself became operative only once the condition had been satisfied. If the same object had in the meantime been used once again as a security—this time, however, for an unconditional loan—the question arose as to which of the two creditors enjoyed preference. If the condition failed to materialize, there was, obviously, no problem. The first hypotheca having lapsed with the debt it was supposed to secure, the second creditor acquired the first rank. But if the condition was in fact satisfied, the second creditor remained second in line; for the matter, according to Gaius, had to be looked at as if the first stipulation had become effective at the time it was concluded:.. perinde habetur, ac si illo tempore, quo stipulatio interposita est, sine condicione facta esset." The first creditor thus enjoyed the rank he would have had in case of an unconditional transaction.(c) Modern interpretation
Various attempts have been made to push the sources into some kind of doctrinal straitjacket. The Roman lawyers have, on the one hand, been taken to have made conditional transactions generally retroactive upon satisfaction of the condition.[3718] Others have maintained that retroactivity was a Byzantine notion; in classical Roman law all conditions produced effects only from the moment of their satisfaction.[3719] [3720] [3721] [3722] [3723] The truth, as usual, appears to lie somewhere in the middle. It is unlikely that there ever was a uniform rule one way or the other; neither was retroactivity entirely alien to classical law,80 nor did Justinian dramatically change the law.81 The problem appears to have been approached in a characteristically pragmatic fashion;82 more particularly, the approach adopted may well have differed according to the specific type of transaction (stricti iuris or bonae fidei) to which the condition was appended.83 Also, it must always be kept in mind that a doctrine of binding precedent did not exist in classical Roman law. The jurists often differed as to how to deal with a specific problem, and in the present context, too, it is more than likely that the solution of individual cases remained controversial.[3724] 8.
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