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Justinian I · The Digest of Justinian §35.1.24.pr

Fictitious Fulfillment of Conditions by Prevention

Passage 5355 of 9271 · Latin

Summary

The text discusses the civil law rule of the constructive fulfillment of conditions—where a condition is held as fulfilled if its fulfillment is prevented by an interested party—and its extension to legacies, institutions of heirs, and stipulations.

[IDEM libro quinquagesimo quinto digestorum. ] §35.1.24.prIure ciuili receptum est, quotiens per eum, cuius interest condicionem impleri, fit, quo minus impleatur, ut perinde habeatur, ac si impleta condicio fuisset: quod plerique et ad legata et ad heredum institutiones perduxerunt.
[By the same writer in the fifty-fifth book of his Digests.] It has been accepted in the civil law that, whenever it is brought about by the person who has an interest in the condition being fulfilled that it is not fulfilled, it should be held just as if the condition had been fulfilled: a rule which most jurists have extended both to legacies and to the institutions of heirs.
quibus exemplis stipulationes quoque committi quidam recte putauerunt, cum per promissorem factum esset, quo minus stipulator condicioni pareret.
Based on these examples, certain jurists have rightly thought that stipulations also are committed when it has been brought about by the promisor that the stipulator does not comply with the condition.

Notes

  1. §35.1.24.prcuius interest — The impersonal verb interest takes the genitive (here cuius) to mean "it is of importance to" or "it concerns (someone's legal interest)." Here it refers to the party who has a legal interest in the fulfillment of the condition.
  2. §35.1.24.prfit, quo minus — The combination of fieri (to be brought about) and quo minus (lest / so that... not) means "it is brought about that... not" or "it is prevented from happening." Accompanied by per eum (by him / due to him), it refers to prevention by active interference or omission.
  3. §35.1.24.prquibus exemplis — A connective relative construction where the relative adjective quibus modifies the noun exemplis. It refers to the previously mentioned precedents of extending the constructive fulfillment of conditions to legacies and the institutions of heirs, with the ablative expressing the basis or reason ("on the basis of these examples").
  4. §35.1.24.prstipulationes ... committi — The verb committi is a legal technical term used of stipulations (or penal clauses therein) meaning "to take effect," "to be forfeited / incurred," or "to have its condition fulfilled."

Cite this passage

Justinian I, The Digest of Justinian §35.1.24.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:35.1.24.pr

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