CONDITION (IN LEGAL ACTS). — The word c. designates two different categories of legal figures. By c. are meant both the presuppositions, logical antecedents, and elements of the legal act (conditio iuris), the requirements necessary for its validity (conditiones essentiales) or its lawfulness (conditiones accidentales), and declarations of will (conditiones voluntatis) legal act (v.) a circumstance upon which its value is made to depend: «circumstantia actui adiecta ex qua eius valor pendet».
Within this second concept falls, as a species within the genus, c. in the strict sense, that is, a declaration of will intended to make the efficacy or destruction of the act depend upon the occurrence or non-occurrence of a future and uncertain event, itself also called c. Once the c. has occurred or failed to occur, its effects (the perfection or cessation of the act’s efficacy) as a rule operate retroactively from the initial moment of the act.
Set against this category of proper c. is the category of improper c. (also understood as declarations of will), by 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), so that the act is valid or invalid according as that which was made subject to c. does or does not exist.
Strictly speaking, these are not c. but reservations, which have in common with c. their structure and legal consequences, since in both figures a hypothesis is formulated that differs only in the quality of the apodosis (objective or real in improper c., eventual or potential in proper c.), and since the positive or negative resolution of the doubt concerning the existence of the element made subject to c. operates like the occurrence or non-occurrence of the event.
Of improper c. the CIC, in addition to can. 1092 no. 4 (c. attached to matrimonial consent), deals in can. 104, where, concerning the error that invalidates the act, alongside error in substantia actus there is considered the error that recidit in conditionem sine qua non. However, in this second case there is not the figure of error (falsum iudicium), since error, as a theoretical act, can never be converted into c.; rather, there is the figure of a reservation, which, as has been said, entails the formulation of a hypothesis that, if it does not correspond to reality, produces the nullity of the act subordinated to II.
Such a reservation must be explicit; otherwise one cannot speak of c., but of one of those figures said to be akin to it, such as presupposition, or undeveloped c.; cause, or simple motive; and demonstratio, or quality attributed to the object intended: concepts that should rather be referred to the factual situation upon which the will operates than to the will itself insofar as it takes concrete form in the legal act.
Another figure akin to condition is modus, for which V. modo.
From what has been said thus far, it is now easy to discern the difference between all the figures mentioned (including improper c.) and proper c., or c. de futuro.
The objective uncertainty of the future event also serves to distinguish the c. term (v.), and to exclude from the concept of proper c. necessary c. (si eras sul orietur), naturally impossible c. (si coelum digito tetigeris), and merely potestative or arbitrary c. (si voluero, si volueris).
As a rule, necessary c., if suspensive, and impossible c., if resolutive, are regarded as unwritten; conversely, if the former are resolutive or the latter suspensive, the act to which they are attached is devoid of any effect.
Finally, there are c. naturally possible but legally impossible (also called perplexed and absurd), which refer to circumstances irreconcilable with the nature and necessary effects of the legal act purported to be performed. These may therefore be brought under the category of immoral or unlawful c., which either invalidate the act (vitiant) or are treated as unwritten (vitiantur), according to the natural or positive regulation of the act (generally, civil laws establish the nullity of the act if the unlawful c. is attached to an inter vivos act, and instead the ineffectiveness of the c. in the case of acts mortis causa).
With this premise, proper c. are distinguished: a) with regard to the production of the event, into potestative, causal, and mixed, according as the event depends upon the will (not upon pure arbitrariness) of one of the parties, upon chance (or the will of a third party), or upon the concurrence of both causes; b) with regard to their effects, into suspensive and resolutive, 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 form, into positive (or affirmative) and negative.
In this connection it should be made clear that the distinction between positive and negative c. does not rest upon the positive or negative grammatical form adopted in expressing them, but upon the manner in which the event in question is to operate upon the pre-existing reality. If the nature of the event is such as to alter the present state of affairs (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 c. with regard to their effects, it is not always easy to establish whether the c. attached to a legal act is suspensive or resolutive.
This depends upon the intention of the person who performed the conditional legal act: if that person intended to establish a legal situation but to bring about its effects only if the c. occurred, it is a suspensive c.; if, on the contrary, that person intended to bring about the effects of the act but to regard them as not having arisen should the c. fail to occur in the future, it is to be considered resolutive.
C. may be attached to almost all legal acts in private law, and also to many in public law. In addition to the general principles set out above, which apply chiefly to contracts and testamentary dispositions, positive law often establishes special rules for c. in relation to particular categories of legal acts.
Thus civil law, with regard to contracts (v. CONTRATTO), lays down rules for c. in rescripts (v. CLAUSOLA), marriage (v.), in elections (v. PROVVISTA CANONICA), in the establishment of a benefice (v. BENEFICIO ECCLESIASTICO), and in the renunciation of a benefice or parish (v. RINUNCIA).