USUS HODIERNUS

With codification, the voyages of "the ship from Asia" as well as the ascents of countless stipulators up Capitol hill have largely sunk into oblivion. Not so, however, the legal rules and institutions that they once served to illustrate.

All legal systems based on Roman law still grant the parties to a contract the possibility, as it were, of extending their private autonomy into the future:¹⁸² they may make the operation of their transaction dependent upon the occurrence, or non-occurrence, of a future, uncertain event.¹⁸³ In many countries, including, incidentally, England, such clauses are known by a word derived from the Latin "condicio".¹⁸⁴ Time clauses are also, of course, permissible;

Of. supra, p. 724.

^H Cf. the arguments advanced by Alan Rodger, "Emptio perfecta Revisited: A Study of Digest 18, 6, 8, 1", (1982) 4 TR 337 sqq.

Andreas von Tuhr, Der Allgemeine Teil des Deutschen Bürgerlichen Rechts, vol. II, 2 (1957), p. 271.

Cf., for example, art. 1168 code civil: "L'obligation est conditionelle lorsqu'on la fait dependre d'un evenementfutur et incertain..." (based on Pothier, Tratte des obligations, n. 199). For a comprehensive comparative analysis of the law relating to conditions, see Schwarz, op. cit., note 100, pp. 391 sqq.; for South Africa, cf. D.P. de Villiers, "Die betekenis van die opskortende voorwaarde by 'n ooreenkoms", (1943) 7 THRHR 13 sqq., 154 sqq.; Joubert, Contract, pp. 169 sqq. On impossible, illegal and immoral conditions, see Schwarz, op. cit., note 100, pp. 406 sqq.; cf. also Denis A. Cooper, "Impossible Conditions in Roman and Modern Law: A Summary Review", (1941-42) 16 Tulane LR 433 sqq.; Flume, AT, § 38, 4 d.

The term "condition" in English law is "a chameleon-like word which takes on its meaning, from its surroundings" (Skips A/S Nordheim v.

Syrian Petroleum Co. Ltd. [1984] QB 599 at 618). Samuel j. Stoljar, "The Contractual Concept of Condition" (1953) 69 LQR 485 sqq. lists no fewer than twelve different legal meanings. The equivalent, roughly, of the Roman "condicio" is what is usually referred to as "contingent condition": specification of an event upon the occurrence, or non-occurrence, of which the obligations of both parties are contingent; cf, for example, Treitel, Contract, pp. 48 sqq. On "condition" in the sense they focus on a future event that is not uncertain.^{^[3803]} Conditions (as well as time clauses) subdivide into those with a suspensive and others with a resolutive effect.^{^[3804]} The distinction between potestative, casual and mixed conditions is still maintained, whether merely by legal doctrine^{^[3805]} ^{^[3806] ^[3807]} or even by the code itself. ¹⁸⁸¹⁸⁹ The pactum displicentiae has in modern German law become the sale on approval; the approval clause is to be construed, in case of doubt, as a suspensive condition.^{^[3808]} The in diem addictio receives specific attention only in the Austrian Code: if the object of the sale has not yet been handed over to the (first) purchaser, it has to be construed as a suspensive condition, otherwise as a resolutive condition.^{^[3809]} The lex commissoria has largely been replaced, in modern business practice,^{^[3810]} by an arrangement according to which the vendor retains ownership of the res vendita until the purchaser has paid the purchase price. This modern variety of the pactum reservati dominii of the ius commune^{^[3811]} is to be construed as envisaging a transfer of ownership sub condicione suspensiva.^{^[3812]} Certain legal transactions are still what the Romans used to refer to as actus legitimi: they cannot be subjected to any condition.

Marriage,^{^[3813]} the admission of paternity of an illegitimate child^{^[3814]} and the acceptance or disclaimer of an inheritance^{^[3815]} are among the more important ones in German law.^{^[3816]} In all these cases the public interest does not permit a state of pendency. This state of pendency is still the characteristic consequence of a condicio suspensiva.^{^[3817]} Before the condition has been satisfied the transaction does not yet have its characteristic consequences. The creditor cannot claim performance and has to render restitution if the debtor pays what he does not yet owe. At the same time, however, the creditor has an expectancy which the law recognizes and protects in various ways.²⁰⁰ Most importantly, this expectancy is actively as well as passively transmissible upon death; and any disposition effected pendente condicione is invalid, on fulfilment of the condition, as far as it would frustrate or impair the conditional transaction. A condition can still be deemed to have been satisfied if its actual satisfaction has been prevented by the party to whose disadvantage it would have operated; likewise, a condition is deemed not to have been satisfied, if its satisfaction has been brought about by the party to whose advantage it would have operated.²⁰¹ And finally: a comparative analysis of modern legal systems still reveals the uncertainty that has, over the centuries, prevailed with regard to the effect of satisfaction.²⁰² According to the French code civil, for example, "[l]a condition accomplie a un efjet retroactif an jour aiiquel ^'engagement a ete contracte".'⁰³ § 158 I BGB, on the other hand, determines that the legal transaction becomes effective "upon satisfaction of the (suspensive) condition" ("ex nunc" effect).²⁰⁴ But, as A.B.

emasculated as a viable means of securing the vendor against the purchaser's insolvency.

For an analysis of the development in the 18th and 19th centuries, cf. Schiemann, op. cit., note 63, pp. 73 sqq., 82 sqq. '* § 13 II EheG.

“ § 1600 b I BGB.

“ § 1947 BGB.

⁶⁸ For details, see Flume. AT, § 38. 5; H.P. Westermann. op. cit.. note 189. § 158. nn.

27 sqq.; cf. also the comparative analysis by Schwarz, op. cit., note 100, pp. 404 sqq.

For details, see Flume, AT, § 39 (Germany); Joubert, Contract, pp. 173 sqq. (South Africa); Schwarz, op. cit., note 100, pp. 416 sqq. (comparative); Schiemann, op. cit., note 63, pp. 55 sqq. and passim.

Cf, for example, Eauterbach, Collegium theoretko-practkum, Lib. II, Tit. XIV, LXXIX: "Ex quibus omnibus satis apparet, etiam pendente conditione aliquid subesse, quod conventionem quodammodo vcrificat et sustentat... ac obligationem nondum quidem natam, conceptam tamen esse, illamque tanquam in utero materno latere."

²³ § 162 BGB; Flume, A T, §40, 1 (German law); Kniitel, 1976 Juristische Blatter 613 sqq. (predominantly Austrian law); joubert, Contract, pp. 175 sqq. (South African law); Schwarz, op. cit., note 100, pp. 414 sq. (comparative). Modern legal systems require in the case of both fictions that the party preventing or bringing about the satisfaction of the condition must either have acted against the precepts of good faith (§ 162 BGB) or must have been at fault ("designedly": Joubert, Contract, p. 176). For a critical evaluation, see Kniitel, 1976 Juristische Blatter 615 sqq. Kniitel maintains that the whole question whether or not a condition has to be treated as satisfied (or as not satisfied) remains a matter of interpretation (as it had, in fact, been in Roman law, supra, pp. 730 sq.); cf., further, especially, Flume, AT, § 40, 1. The same view appears to be taken, occasionally, in English law; cf. Mackay v. DiVfe~(1881) 6 AC 251 (HL) and Schwarz, op. cit., note 100, pp. 414 sqq.; but cf. Treitel, Contract, pp. 49 sqq.

²² For a detailed analysis, cf. Schiemann, op. cit., note 63, passim (esp. pp. 29 sqq., 36 Z£[%- ^{82 s}4q-)

³ Art. 1179 code civil; based on Pothier, Traite des obligations, n. 220. ²⁽¹⁴

Cf. already Windscheid/Kipp, § 91.

Schwarz has pointed out,^[3818] the practical differences between the two regimes are not at all significant: neither is retroactivity carried to all its logical consequences, nor does it, as a rule, entail results which could not also be achieved on an alternative doctrinal basis.

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

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