Obrázky na stránke
PDF
ePub

BOOK I.

Chapter I.

a Cf. §§ 120, 148.

b Cf. § 79.

Ulp. Si igitur me fundum emere putarem Cornelianum, tu mihi te vendere Sempronianum putasti: quia in corpore dissensimus emptio nulla est.―l. 9 pr. D. de C. E. 18, 1.1

(2) Intentional, so that only the declaration as such, not its substance, is willed; sometimes palpably, as when the declaration of will is given as pleasantry, in mirth, and the like; sometimes covertly, but within the knowledge of the other party, as when the transaction which has been concluded is intended only as a nominal transaction, behind which possibly is concealed another that has actually been intended. This is simulatio.'" From simulatio we must distinguish those nominal transactions-especially a sale 'nummo uno '-in which, for the sake of solemn form, dicis gratia,' were embodied certain declarations of will recognised by the ius civile; e.g., mancipatio as intended to transfer ownership, commencement and extinction of the family relationships, and making a testament."

Modest. Contractus imaginarii . . . iuris vinculum non obtinent.-1. 54, D. de O. et A.2

Ulp. Si quis donationis causa minoris vendat, venditio valet: totiens enim dicimus, in totum venditionem non valere, quotiens universa venditio donationis causa facta est.-1. 38, D. de C. E.3

3

instance, the purchaser or hirer has intended something else than he who contracts with them, the whole transaction is void.

If, accordingly, I suppose I was purchasing the Cornelian estate, but you that you were selling me the Sempronian, the purchase is void, because we have not been of the same mind upon the object.

2 Nominal contracts have not the effect of a legal obligation.

3 If any one in consideration of a gift buys at a lower price, the sale is good; for we only say that the sale is entirely invalid when the whole sale has been effected in consideration of a

gift.

Plus valere quod agitur, quam quod simulate concipitur.-Rubr. C. 4, 22.1

§ 19. SUBJECT-MATTER OF LEGAL TRANSACTIONS. ACCESSORY PROVISIONS.

BOOK 1. Chapter 1.

First, the substance of a legal transaction can in general be all that the individual as a private person can legally intend, with the exception of what naturally or juristically is impossible, as well as what contradicts absolute provisions of the Law," or the dictates of a Cr. § 4. morality and propriety (boni mores), recognised by positive law.

Cels.

b For exx. see §§ 21, 70, 105,

Impossibilium nulla obligatio est.-122, 124.

D. 50, 17, 185.2

Ulp. Generaliter novimus, turpes stipulationes nullius esse momenti.-1. 26, D. de V. O. 45, 1.3 Multifarious as may be the possible subject-matter of a legal transaction, the following ingredients admit of distinction :

1. Essentialia negotii,' essential or necessary elements inherent in the idea of a particular transaction, and conditioning its existence, e.g., settlement of the price in purchase and hire.

e Cf. § 159.

2. 'Naturalia negotii,' natural or normal elements, which, while governed by positive law, result as of course from the nature of the particular transaction, and therefore in the absence of any different arrangement are taken to have been tacitly intended: such are contemporaneous performance in a cf. § 4. a purchase, transfer of risk and enjoyment to the § 122. purchaser upon the conclusion of the contract.f

[ocr errors]

§ 124.

Ulp. In primis sciendum est, in hoc iudicio . . . id praestari, quod inter contrahentes Sc. empt.

1 What is actually transacted avails before what is ostensibly expressed.

2 No obligation can exist in respect of things impossible. It is matter of common knowledge with us that disgraceful stipulations are of no force.

Η

BOOK I.

Chapter 1.

a In the wider sense con

dicio' is every express arrangement in a legal transac

tion.

actum est; quodsi nihil convenit, tunc ea praestabuntur, quae naturaliter insunt huius iudicii potestate.-1. 11, § 1, D. de A. E. V. 19, 1.1

3. Accidentalia,' casual or extraordinary elements, i.e., those dependent on mere private caprice, and not to be assumed without special declaration of will. These are

(a) accessory provisions in the wider sense, such as all variations of the 'naturalia ;'

(B) supplementary contracts modifying, strengthening, or curtailing the principal contract, such as conventional penalty, security, proviso avoiding a contract;

(y) accessory provisions in the narrower sense, which limit the effect of the declaration of will itself, or self-imposed limitations, such as condicio' in the restricted sense," 'dies,' 'modus.' A transaction free from these is called a 'purum negotium.'

Papin. Actus legitimi . . . veluti (e)mancipatio acceptilatio, hereditatis aditio, servi optio, datio tutoris, in totum vitiantur per temporis vel condicionis adiectionem.-1. 77, D. de R. J.2

Next of CONDITIONS, and first of their nature and varieties.

A 'condicio' is the accessory provision which makes the operation of a declaration arbitrarily depend upon the occurrence or non-occurrence of a future, uncertain event, and as such is either affirmative' or 'negative.'

1 One must know before all that in this action is carried out what has been arranged by the parties; but if nothing have been arrived at, such things will have to be carried out as naturally are comprehended in the operation of this action.

2

Legal acts... such as [e]mancipation, an acquittance, the taking up an inheritance, the selection of a slave, the nomination of a guardian, become entirely invalid by the addition of a limitation as to time or of a condition.

BOOK I.

Chapter I.

According as it determines the beginning or the end of the operation of the transaction, it is a suspensive' or a 'resolutory' condition. 'Conditiones iuris' (s. ‘quae tacite insunt'), i.e., the actual prerequisites of its operation which already lie in the nature of the transaction are not true conditions; just as little the " § 171. conditions imposed upon an event present, or past, or of necessary occurrence.

Sub condicione stipulatio fit, cum in aliquem casum differtur obligatio, ut, si aliquid factum fuerit aut non fuerit, stipulatio committatur, veluti si Titius consul factus fuerit, quinque aureos dare spondes?'-§ 4, I. de V. O. 3, 15.'

Ulp.si quidem hoc actum est, ut meliore allata condicione ab emptione discedatur, erit pura emptio, quae sub condicione resolvitur ; sin autem hoc actum est, ut perficiatur emptio nisi melior condicio offeratur, erit emptio condicionalis.-D. 18, 2, 2 pr.2

Id. Stipulationem, quae propter causam dotis fiat, constat habere in se condicionem hanc: si nuptiae fuerint secutae.-1. 21, D. de J. D. 23, 3.3

Inst. iii. 15, 6 Condiciones, quae ad praeteritum vel praesens tempus referuntur, aut statim infirmant obligationem aut omnino non differunt, veluti si Titius consul fuerit,' vel, si Maevius

1 A stipulation is made conditionally when the obligation is postponed until some event, so that the stipulation takes effect if something come to pass or does not come to pass: for instance, 'Do you undertake to give me five aurei, if Titius become consul?'

2... if this have been done so as to admit of a withdrawal of the purchase if a better bid follow, it will be an unconditional purchase, which is performed conditionally; but if it have been done so that the purchase shall be completed unless a better bid be forthcoming, the purchase will be conditional.

It is well-established law that a stipulation which arises in consideration of dowry contains this condition: if the marriage shall have followed.

BOOK I. Chapter 1.

vivit, dare spondes?' nam si ea ita non sunt, nihil valet stipulatio; sin autem ita se habent, statim valet. Quae enim per rerum naturam certa sunt, non morantur obligationem, licet apud nos incerta sint.'

Ulp. Qui sub condicione stipulatur, quae omnimodo exstitura est, pure videtur stipulari.— D. 46, 2, 9, 1.2

Furthermore, distinction is made between conditions that are 'potestative' and 'casual' and between those that are possible,' 'impossible,' and 'illegal' (turpes condiciones).

Imp. Iustinian.: Sin autem aliquid sub condicione relinquatur vel casuali vel potestativa, vel mixta, quarum eventus ex fortuna, vel ex honoratae personae voluntate, vel ex utroque pendeat. . . C. 6, 51, 1. un. § 7.3

Papin. Si ita stipulatus fuero: 'si in Capitolium non ascenderis,' vel 'Alexandriam non ieris, centum dari spondes?' non statim committetur stipulatio, . . . sed cum certum esse coeperit, te Capitolium ascendere vel Alexandriam ire non. posse.-D. 45, 1, 115.1

...

1 Conditions which relate to past or present time either at once invalidate the obligation, or do not at all postpone it, for instance: Do you undertake to give so and so, if Titius has been consul?' or, if Maevius is alive?' For if these be not facts, the stipulation is void; if they are facts, it is at once binding. For such things as are actually certain do not suspend the obligation, although uncertain as regards our knowledge of them. 2 He that stipulates under a condition which certainly will happen is regarded as stipulating unconditionally.

3 But if anything have been left by testament under a condition subject to the caprice of the legatee, or mixed, the result of which is dependent upon hazard or upon the will of the person provided for, or upon both . . .

4 If I shall have stipulated thus: 'Do you undertake that a hundred be given, if you should not go up to the Capitol, or should not go to Alexandria ?' the stipulation will not take effect at . . but when it shall begin to be certain that you cannot go up to the Capitol or go to Alexandria.

once

« PredošláPokračovať »