Clause

CLAUSE. - The term c. (from Latin claudo) means generically final part and specifically the concise conclusion of a discourse.

IN LAW

The term is found in Roman legal sources, and not only to indicate the final part, but also a chapter, or a body of provisions, of the praetor's edict on a given subject (clausula edictalis).

Hence the twofold meaning that the term has in common legal language. By c. is meant in fact both a chapter or article that forms the content of a transaction (contractual c., testamentary c.), and, in the strict sense, a provision, expressed in a brief significant formula sanctioned by usage, which is inserted into an act (as a rule as an appendix) in order to give it a particular extending or restricting effect.

Thus there is, for example, in Roman law, the c. codicillaris, to ensure that the will, even if declared invalid as such, may at least be valid as a codicil; thus there are, in modern law of obligations, the penalty c., the arbitration c., the c. rebus sic stantibus, the non-competition c., and so on; and, outside the field of private law, the provisional c. (CIC, can. 1917 § 2), the most-favoured-nation c., etc.

In order to attempt a systematic classification of the c. most frequently used in canon law (the old treatises report interminable lists of them), it may be said that, with respect to the source from which the acts proceed, they are distinguished into clausulae communes, those which are customarily appended to contracts, wills, judicial acts of a party, etc.; and into clausulae apostolicae, proper to the acts of the pontiff.

The notion of c. in canon law particularly concerns the doctrine of rescripts (v.), where, however, the term is used interchangeably with the term condition in the broad sense, to signify both the circumstances essential for the validity of the rescript (for example, the c. or condition "si preces veritate nitantur", which must in any case be understood), and the accidental and modal circumstances, such as commands, admonitions (clausulae mere praeceptivae), instructions, commonly directed to the executor of the rescript (clausulae instructivae), whose non-fulfilment, while undoubtedly constituting an unlawful act, is nevertheless devoid of the sanction of nullity of the rescript.

But this notion, elaborated in the matter of rescripts and yet certainly not limited to this alone, does not exhaust, as has been seen and as will still be seen, the entire concept of c. in the strict sense.

In general, from the standpoint of content, two categories of c. may in fact be distinguished: those of merely positive content, which fix the conditions for the validity of the act, determine its efficacy (for example, the c. "rebus sic stantibus") and its modalities; those of negative content which consist in provisions extending or restricting the efficacy of the act itself, and this in derogation of the norms of common law (clausulae derogatoriae).

In this second category are to be placed: a) the c. by which a pre-existing state of law is modified, through the abrogation of norms or the revocation of concessions (clausulae abrogatoriae, revocatoriae); let the usual formulas "revocatis vel non obstantibus..." be recalled in this regard; b) those by which it is intended to prevent the formation of a possible state of law (clausulae prohibitoriae), as, for example, in the formula "exclusa in futuro qualibet consuetudine contraria"; c) those which limit in time the normal efficacy of the act (clausulae peremptoriae); d) those finally which preserve the act from possible challenges, by effecting its confirmation in advance (clausulae praedictales).

As regards the interpretation of the c., in order to establish their effects, there cannot be, as is obvious, a certain general rule. With regard to the first category (c.-conditions), the CIC offers, in can. 39, a formalistic criterion, which, although laid down for rescripts, is to be extended also to other acts and, by analogy, to laws: conditions are presumed essential for the validity of the act, whenever they are expressed with the particles si, dummodo or another equivalent.

As for the other category, the sense and efficacy of some of the more frequently used c. are sometimes determined by the CIC itself, sometimes by doctrine.

Thus, for example, by means of the peremptory c. "ad beneplacitum nostrum" (v.) or another equivalent (for example, "donec voluero", but not "donec revocavero" or "usque ad revocationem" or "ad beneplacitum Ordinarii pro tempore", "ad beneplacitum Sedis") the efficacy of the rescript is limited in time, which normally endures even resoluto iure concedentis (cf. can. 73, in relation to can. 61); with the c. "motu-proprio" (can. 45) the invalidity of the rescript deriving from the concealment of truths held to be necessary is cured (and this in derogation of the principle laid down in the preceding cann. 40 and 42), inasmuch as it is supposed that, with the adoption of the aforesaid c., the will of the rescript has rendered itself independent of the motivating causes set out in the petition; with the clausulae praedictales maiores (c. "ex certa scientia", "sublata", "decretum irritans", etc.) the mouth is closed and the hands are bound, to use the characteristic expression of Card. De Luca, for the judge and the parties, that is, by withdrawing the cognizance of any challenge to the act from any other judge than the Roman pontiff himself.

Ermanno Graziani

IN MUSIC

The end of every period, or of every more or less terminative literary and musical division, is considered a c. The cursus is a system of characteristic literary c. (v. CURSUS and CADENZA SALMODICA). Every c. or cadence is produced by a preordained order or style, or in the free succession of thoughts and of the music. In the liturgical style there are many c. in the endings and in the subdivisions of psalms, hymns, responsories, antiphons, the alternating chants of the Mass, dialogues between ministers and people, etc.

The dimension or classification of c. in free style or of logical succession also changes, and may have a greater or lesser development. Usually c. are divided into incises, members, phrases, and even periods. The logical resolution of the rhythmic, melodic or harmonic development is the criterion for marking the limits of the c. In simple rhythmic succession, the end is hinted at by the moving away from the initial center or impulse, in such a way that the movement or succession of times demands a rest. In melodic and therefore also rhythmic movement, the end is indicated by the lack of attraction of the sounds, in such a way that the melodic relation between them comes to an end. In harmonic combinations the c. is produced by the resolution of the concordant parts, in such a way that the harmonic logic is interrupted in a more or less conclusive manner, and then a new proposition begins. Both in the literary c. and in the rhythmic or harmonic one, the total or definitive resolution (or of phrase) is prepared by the succession of various partial groupings, arising from the development of the thought, from the movement or from the consonance. Consequently all the preceding c. are called closed or open, according as the sense of rest is more or less definitive. In harmonic chant the c. have rules or manners of cadencing very different from those in simple chant, and especially in Gregorian chant. Gregorian c., because of the ancient modality, whether they close simple phrases or close the final period, do not always end on those notes that the moderns call tonics or fundamentals; and in this they come closer to the Hellenic modality.

For the metrical clausula, v. CURSUS.

Gregorio M. Suñol