posita est, sine condicione facta esset.-D. 20, Id. Si filiusfamilias sub condicione stipulatus emancipatus fuerit, deinde exstiterit condicio, patri actio competit, quia in stipulationibus id tempus spectatur, quo contrahimus.-D. 45, I, 78 pr.3 Id. Si sub condicione emptio facta sit, pendente condicione emptor usu non capit.-D. 41, 4, 2, 2.* Id. Quodsi sub condicione res venierit, si quidem defecerit condicio, nulla est emptio sicuti nec stipulatio. . . . Quodsi pendente condicione emptor vel venditor decesserit, constat, si extiterit condicio, heredes quoque obligatos esse, quasi iam contracta emptione in praeteritum. Stipulationes et legata condicionalia perimuntur, si pendente condicione res extincta fuerit.D. 18, 6, 8 pr.3 1 when once a condition is fulfilled, the stipulation is regarded just as if at that time when it was introduced it had been made unconditionally. 2... if he have stipulated under a condition, . . . the stipulation obtains legal force immediately, although the action arising out of it be suspended. 3 If a filius-familias who has stipulated under a condition. has been freed from power, and the condition has been fulfilled, the action belongs to the father, because in a stipulation regard is had to the time when we concluded the contract. If a purchase have been made conditionally, time does not run in favour of the buyer as long as the condition is pending. 5 But if a thing have been sold under a condition and this have lapsed, the purchase is void, just like a stipulation. . . . But if, while the condition is pending, the purchaser or vendor die, it is settled the heirs also are under an obligation, should the condition be fulfilled, as though the purchase had been already concluded for the past. . . . Stipulations and conditional legacies are extinguished if the thing be destroyed while the condition is pending. BOOK I. Chapter I. Book I. Chapter I. a See the passage cited above from Ulp. in D. 18, 2, 2 pr. Reversely, a transaction concluded under a resolutory condition has full operation at once, and has retrospective effect upon the occurrence of the condition.a Thirdly, the TERM (or day, 'dies'), an addition to the declaration of will, which arbitrarily limits the legal relation established by it in respect of time. (1) The initial term and the final term. 1 Paul. Circa diem duplex inspectio est, nam vel ex die incipit obligatio, aut confertur in diem; ex die veluti: kalendis Martiis dare spondes?' cuius natura haec est, ut ante diem non exigatur; ad diem autem usque ad kalendas dare spondes?' Placet autem ad tempus obligationem constitui non posse,-nam quod alicui deberi coepit, certis modis desinit deberi: plane post tempus stipulator vel pacti conventi vel doli mali exceptione summoveri poterit.-D. 44, 7, 44, 1.' Inst. iii. 15, 3: Si ita stipuleris: decem aureos annuos quoad vivam dare spondes?' et pure facta obligatio intelligitur et perpetuatur, quia ad tempus deberi non potest: sed heres petendo pacti exceptione summovebitur.* 1 With regard to the dies there is a twofold consideration, for either the obligation begins with a dies, or it is postponed until a certain dies. From a dies, as: 'Do you undertake to give soand-so on the 1st of March ?' Its nature is such that no claim can be made before the dies. But until a dies: 'Do you undertake to give so-and-so until the first day of next month?' But it is considered that an obligation cannot be fixed for a certain length of time. . . for what has begun to be owing to any one can only cease to be owing in a certain manner, but naturally the contracting party can after a time be defeated by the plea of the contractual agreement or of fraud. 2 If you stipulate thus: 'Do you undertake to give me yearly as long as I live ten gold-pieces?' the obligation is regarded as absolute and perpetual, because a debt cannot be due for a time; but the heir on suing will be defeated by the plea of an agreement. (2) Dies certus an, certus quando; certus an, incertus quando; incertus an, certus quando; incertus an, incertus quando. The last avails always, the last but one usually as a condition. Papin. Heres meus, cum morietur Titius, centum ei dato:' purum legatum est, quia non condicione sed mora suspenditur; non potest enim condicio non existere.-D. 35, 1, 79 pr.' Ulp. Si cum heres morietur' legetur, condicionale legatum est: denique vivo herede defunctus legatarius ad heredem non transfert.— D. 36, 2, 4 pr.2 Pomp. Si Titio, 'cum is annorum quattuordecim esset factus' legatum fuerit, ... non solum diem sed et condicionem hoc legatum in se continet 'si effectus esset annorum quattuordecim.' -1. 22 pr. eod.3 (3) The 'dies' does but suspend the operation of the declaration of will without placing it in uncertainty. The obligation in question is therefore established forthwith, only that it cannot be made available or be exercised before the occurrence of the 'dies;' or the particular real right, which is certain as to its commencement, substantially exists upon the occurrence of the 'dies.' Id autem quod in diem stipulamur, statim quidem debetur, sed peti prius quam dies veniat non potest. § 2, I. de V. O.1 1'My heir when Titius dies shall give to him a hundred' this is an absolute legacy, because it depends not upon a condition but upon delay, for the condition cannot but be fulfilled. 2 If a legacy be given upon the death of the heir,' it is conditional; nor can it during the lifetime of the heir pass from a dead legatee to his heir. 3 If a legacy have been given to Titius upon his having become fourteen years of age'. . . this legacy comprehends condicio no less than dies: if he should have reached the age of fourteen.' That which we stipulate for with reference to date is indeed BOOK I. Chapter 1. BOOK I. Chapter I. a See Bell, s. vv. Cels. Quod certa die promissum est, vel statim dari potest: totum enim medium tempus ad solvendum promissori liberum relinqui intelligitur -D. 46, 3, 70.1 : Paul. In diem debitor adeo debitor est, ut ante diem solutum repetere non possit.-D. 12, 6, 10.2 Ulp. Cedere diem significat, incipere deberi pecuniam; venire diem significat, eum diem yenisse, quo pecunia peti possit. Ubi pure quis stipulatus fuerit, et cessit et venit dies; ubi in diem, cessit dies, sed nondum venit; ubi sub condicione, neque cessit neque venit dies pendente adhuc condicione.-D. 50, 16, 213 pr.3 Finally, as to 'Modus,' or limitation of the purpose, incumbered appropriation, which is the accessory provision in the onerous application of property, imposing on the recipient the obligation to appropriate what is received in some particular way, to carry something out, to perform some collateral act or observe some line of conduct, without, however, making the operation of the user dependent upon that, or postponing it. Gai. Quodsi cui in hoc legatum sit, ut ex eo aliquid faceret, veluti monumentum testatori vel opus aut epulum municipibus, vel ex eo ut partem an immediate debt, but it cannot be demanded until the day arrives. 1 That which has been promised for a certain day can be given even at once, for it is supposed that the whole intervening time is left open for the promisor to pay. 2 A debtor for a limited time is so much a debtor that he cannot before the time reclaim what he has paid. 3 By cedere diema is meant that the money is already due, by venire diema that the date has arrived when the money can be sued for. Where a person shall have entered into an absolute contract, time both runs and has elapsed; where the stipulation is in diem, time runs, but has not yet run out; where sub condicione, time neither runs nor has elapsed while the condition is still pending. alii restitueret: sub modo legatum videtur.-D. nec enim parem dicemus eum, cui Pomp. In testamentis quaedam scribuntur, quae ad auctoritatem dumtaxat scribentis referuntur nec obligationem pariunt.-Et in omnibus, ubi auctoritas sola testatoris est, neque omnimodo spernenda neque omnimodo observanda est; sed interventu iudicis haec omnia debent, si non ad turpem causam feruntur, ad effectum perduci.D. 33, 1, 7.3 20. REPRESENTATION." Under Representation in its wider sense is understood that relation between two persons by virtue of which the legal result of the declaration of the will of one in general takes the place of the other. Representation in its narrower sense exists when some one declares his own will instead of and for another, with legal effect for the latter. From the procurator or representative, we must distinguish the nuntius,' or messenger, who is but the communicator of another's will. 1 But if a bequest have been made to a person in order to effect something by it, as a monument to the testator, or a building, or a banquet for the municipalities, or to deliver half thereof to another, the bequest is regarded as conditional. 2... for we cannot treat as on the same footing the man to whom a gift is made, 'if he shall have erected a monument,' and him to whom a gift is made, 'that he may erect a monument.' * In testaments some things are written which concern only the authority of the writer and create no obligation. And in all where the authority is alone that of the testator, it is neither entirely to be disregarded nor is to be observed entirely, but all such things require the intervention of a iudex to be carried out, provided they are not conceived with an evil purpose. BOOK I. Chapter I. a See Markby, 89. 247-253. |