CONDITION (IN LEGAL ACTS). - By the word c. two different categories of legal figures are designated. By c. are meant both the presuppositions, the logical antecedents, the elements of the legal act (conditio iuris), the requirements necessary for its validity (conditiones essentiales) or for its lawfulness (conditiones accidentales), and the dispositions of will (conditiones voluntatis), which add to a legal act (v.) a circumstance on which its value is made to depend: «circumstantia actui adiecta ex qua eius valor pendet».
Within this second concept there is placed, as a species within the genus, the c. in the strict sense, that is, that disposition of will intended to make the efficacy or the destruction of the act depend on the occurrence or non-occurrence of a future and uncertain event, also called c. Once the c. has occurred or failed to occur, the effects of this (perfection or cessation of the efficacy of the act) as a rule relate back to the initial moment of the act.
To this category of proper c. is opposed the category of improper c. (also understood as dispositions of will), by means of which the efficacy of the act is subordinated not to a future and uncertain event, but to a past or present circumstance (condiciones in praeteritum vel in praesens collatae), in such a way that the act is valid or invalid according as there exists or does not exist that which has been subjected to the c.
These properly are not c. but reservations, which have in common with c. the structure and the legal consequences, inasmuch as in both figures a hypothesis is formulated which varies only in the quality of the apodosis (objective or real in improper c., eventual or potential in proper ones), and inasmuch as the positive or negative resolution of the doubt, concerning the existence of the element subjected to the c., operates like the occurrence or non-occurrence of the event.
Of the improper c. the CIC treats, besides in can. 1092 n. 4 (c. attached to matrimonial consent), in can. 104, where, concerning the error that invalidates the act, there is considered, alongside the error in substantia actus, the error that recidit in conditionem sine qua non. Except that, in this second hypothesis, there is not the figure of error (falsum iudicium), inasmuch as error, a theoretical act, can never be converted into a c., but there is instead the figure of the reservation, which imports, as has been said, the formulation of a hypothesis, which, if it does not correspond to reality, produces the nullity of the act subordinated to it.
Such a reservation must be explicit, otherwise one cannot speak of a c., but of one of those figures which are said to be akin to it, such as the presupposition, or c. not developed, the cause, or simple motive, and the demonstratio, or quality attributed to the object willed: concepts which are rather to be referred to the factual situation on which the will operates, rather than to the will itself insofar as it is concretized in the legal act.
Another figure akin to the condition is the modus, for which v. modo.
From what has been said thus far it is now easy to discern the difference that exists between all the figures mentioned (including the improper c.) and the proper or de futuro c.
The objective uncertainty of the future event serves then to distinguish the c. here treated from the term (v.), and to exclude from the concept of proper c. the necessary c. (si eras sul orietur), the naturally impossible c. (si coelum digito tetigeris), the merely potestative or arbitrary c. (si voluero, si volueris).
As a rule the necessary c., if they are suspensive, and the impossible c., if they are resolutory, are considered as not attached; conversely if the former are resolutory or the latter are suspensive, the act to which they are attached is devoid of any effect.
There are finally c. naturally possible but juridically impossible (also called perplexed and absurd), which refer to circumstances irreconcilable with the nature and the necessary effects of the legal act that one claims to bring into being. These can therefore be brought back under the category of the base or unlawful c., which either produce the invalidity of the act (vitiant) or are held as not attached (vitiantur), according to the natural or positive regulation of the act (generally the civil laws establish the nullity of the act, if the unlawful c. is attached to an act inter vivos, and instead the inefficacy of the c., in the case of acts mortis causa).
This premised, proper c. are distinguished: a) with regard to the production of the event, into potestative, causal and mixed, according as the event depends on the will (not on pure arbitrariness) of one of the subjects, on chance (or on the will of a third party), on the concurrence of both causes; b) with regard to the effects, into suspensive and resolutory, according as the event (positive or negative) is assumed as a c. for the efficacy of the act or for its destruction; c) with regard to the form, into positive (or affirmative) and negative.
It should be specified in this regard that the distinction of c. into positive and negative does not rest on the positive or negative grammatical form that is adopted in expressing them, but on the way in which the event considered must operate on pre-existing reality. If the nature of the event is such as to change the present state of things (si navis veniet ex Asia), the condition is positive; in the opposite case (si navis ex Asia non veniet), it is negative.
As for the quality of the c. with regard to the effects, it is not always easy to establish whether the c. attached to a legal act is suspensive or resolutory.
This depends on the intention of the one who brought into being the conditioned legal act: if he intended to commit a legal situation, but to promote its effects only in the case of the occurrence of the c., it is a matter of a suspensive c.; if conversely he intended to promote the effects of the act but to consider them not produced, should the c. not occur in the future, this will be to be considered as resolutory.
C. can be attached to almost all legal acts of private law, and also to many of public law. Besides the general principles set out above, which hold especially for contracts and for testamentary dispositions, positive law often gives special norms for c. relatively to determinate categories of legal acts.
Thus the civil law as regards contracts (v. CONTRATTO), lays down norms for c. in rescripts (v. CLAUSOLA), in marriage (v.), in elections (v. PROVVISTA CANONICA), in the foundation of a benefice (v. BENEFICIO ECCLESIASTICO), in the renunciation of a benefice or of a parish (v. RINUNCIA).
Bibliography4 works
Ermanno Graziani