!!Экзамен зачет 2023 год / The Law of Obligations

As with the other strictly formal acts of the old ius civile, the stipulation gave rise to only one obligation, not to mutual ones.136 One party {the debtor) would be bound to perform towards the other {the creditor), but could not, under the same stipulation, acquire a counterclaim. Or, the other way round: the stipulation granted the creditor a right, without, at the same time, imposing a duty on him. The stipulation was a unilaterally binding contract. If, therefore, the parties wished to cast a bilateral agreement {as, for example, a contract of sale) in the form of a contract verbis, they had to make two stipulations: the one relating to the purchase price, the other obliging the seller to make delivery. If the promisor wanted to make sure that the stipulator did not take advantage of the unilateral nature of the transaction by trying to enforce his right without having rendered performance, he would link the two promises to each other by means of a condition: "Centum mihi dari spondes, si Pamphilum tibi dederim?" "Spondeo"; similarly, the second stipulation would then normally be: "Pamphilum mihi dari spondes, si centum tibi dederim?" "Spondeo".137

8.The framing of the stipulation

(a)Abstract or causal?

As far as the framing of the stipulation was concerned, we have already seen that there had to be formal correspondence between question and answer. But, apart from that, the use of specific words was not prescribed. That was what made the form of stipulation such a flexible tool. It could be used to promise whatever dare, facere or praestare the parties had in mind. If that was payment of one hundred, they could, for instance, merely say: "Centum mihi dari spondes?" "Spondeo." But, of course, nobody is likely to promise centum just like that. People usually have a reason for making such a promise. In our example the hundred might have been promised as a dowry or because the parties wanted to reaffirm an obligation based on a contract of sale; or perhaps the hundred was simply meant as a gift. This underlying purpose of the promise did not have to be mentioned in the stipulation; the stipulation—as in our example above—was then framed abstractly. Why the hundred had been promised, was anybody's guess; it certainly

136 The unilateral nature of legal relationships in the old Roman law is stressed by Jhering, Geist III, pp. 199 sqq. and ties in with the principle of simplicity. "Der Gedanke der

Gegenseitigkeit ist kein ursprunglicher Gedanke des romischen Zivilrechts, das spezifisch Romische ist die Einseitigkeit. . . . Die einseitige Obligation ist nicht bloss die einfachste Obligationsform im analytischen Sinne, sondern auch im praktischen Sinn, d.h. die am leichtesten zu handhabende" (The notion of reciprocity is not an original idea of Roman private law; unilaterality is the specifically Roman notion . . . The unilateral obligation is not only the simplest type of obligation from an analytical perspective, but also from a practical point of view, i.e. it is the one that can most easily be handled). Cf. also Wieacker, RR, pp. 327 sq.

~ As will be seen, the two reciprocal stipulations could also be connected by means of an exceptio (in this instance the exceptio mercis non traditae would have been applicable).

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could not be ascertained from the stipulation itself. The promise was therefore valid according to the ius civile, irrespective of whether anything had gone wrong as far as this underlying causa was concerned. On the other hand, the parties could also expressly include the causa stipulationis in the wording of question (and answer) and thus draft the stipulation causally: "Centum mihi dotis causa spondes?" "Spondeo" (or: "Centum tibi dotis causa spondeo"); or: "Quod mihi ex empto debes, dari spondes?" "Spondeo"; or: "Centum mihi donationis causa spondes?" "Spondeo". Here the obligatory effect of the promise was tied to the validity of dos, sale or donation. A clear comprehension of these two ways of drafting a stipulation is also relevant as far as the interpretation of stipulations is concerned. A good example is lav. D. 24, 3, 66, 4: "Mulier, quae centum dotis apud virum habebat, divortio facto ducenta a viro errante stipulata erat. Labeo putat, quanta dos fuisset, tantam deberi, sive prudens mulier plus esset stipulata sive imprudens: Labeonis sententiam probo." Here, the value of the dos was 100, but the ex-husband mistakenly promised to pay back 200. Both Labeo and Iavolenus think that only 100 are owed. This decision must seem either very strange or astonishingly "progressive" to anybody who would assume this stipulation to have been something like "Ducenta mihi dari spondes?" "Spondeo". For how could a clear and unambiguous promise of ducenta be held to mean centum by any classical lawyer, let alone by an early classical writer such as M. Antistius Labeo? Stipulations, after all, were strictly construed, and circumstances not embodied in their wording were normally not taken into consideration.138 Things look quite different if one takes the possibility into account that the stipulation had been framed causally— and would thus have mentioned that the promise was given for the purpose of repayment of the dos. Looking at the stipulation now, one is faced with a glaring inconsistency: the parties spelt out the sum of two hundred, but they actually envisaged (as is apparent from the text of the stipulation, too) the sum of one hundred. The promise therefore seems to be for one hundred and for two hundred at the same time. The fact that Labeo, under these circumstances, chose to interpret the stipulation in the way he did (because one hundred was what the parties really had in mind) would then have attested to his skill in finding the most sensible solution to the problem. It is more than likely that, indeed, the problem presented itself in terms of the second alternative. For it has to be taken into consideration that "mulier" would, in any event, after termination of her marriage have had a claim for restoration

138 Therefore the text has been regarded as spurious (Riccobono/Kerr Wylie/Beinart, pp. 105 sqq.)- Wunner, Contractus, pp. 206 sqq., on the other hand, accepts the text as evidence for both the prevalence of voluntas over quod dictum est in the law of stipulation and for quantitative severability of contracts. Contra Zimmermann, Moderationsrecht, pp. 132 sq. On the principles governing interpretation cf. infra, pp. 621 sqq.

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of the dos and would thus have been able to avail herself of the actio rei uxoriae. The stipulation therefore appears to have had a novatory function; we know, however, that stipulations of a novatory character always stated as their content that which was owed under the previous obligation; in other words, that they were framed causally.139

(b) The exceptio non numeratae pecuniae

On the other hand, the practical difference between the abstract and causal way of drafting the stipulation should not be overrated. Abstraction did not entirely exclude recourse to the causa—it only made it more difficult. Where the creditor tried to enforce an abstractly framed stipulation, the debtor could still defend himself by pointing out that the hundred were meant to be a dos and that the marriage had not taken place, or that the promise was based on a contract of sale which had been invalid, etc. But it was only by way of an exceptio, usually the exceptio doli (which the defendant had to get inserted into the formula), that all this could be taken into account: the argument being that a creditor enforcing a stipulation sine causa was acting in breach of good faith.140 For certain situations special exceptiones were available: the exceptio mercis non traditae where a purchase price had been—abstractly—stipulated and where this stipulation was now enforced without the goods having been delivered;141 the exceptio non numeratae pecuniae where the defendant objected that he had in actual fact not received the loan for the return of which he was now being sued. This latter exceptio was introduced in late classical law in order to meet the situation where the debtor had acknowledged receipt of, and promised to repay, the sum agreed upon before it had actually been handed over to him.142 That prospective creditors should have asked for such an anticipatory promise does not seem to have been uncommon at all;143 the borrowers, in order to receive the capital, would have complied with this request by way of stipulation; and evidence of this stipulation would, by that time, generally have been a written document (which in the course of the further development was to acquire an increasingly dispositive function after the model of the Greek оѵу"ураірт|). Of course, under these circumstances it was bound to happen that what had in actual fact already been acknowledged did not take place and that the loan was not handed over after all. If the creditor then presented the instrument and sued for repayment, he

139Cf., for example, Ulp. D. 45, 1, 75, 6.

140Cf. Wolf, Causa stipulationis, pp. 1 sqq., 76 sqq.; Andreas Wacke, "Zur causa der

Stipulation", (1972) 40 TR 237 sqq.; Dobbertin, op. cit., note 26, pp. 60 sqq. tAX Gai. IV, 126 a; lui. D. 19, 1, 25; cf. Thielmann, Prwatauktion, pp. 141 sqq.

142 See esp. Ernst Levy, "Die querela non numeratae pecuniae", (1953) 70 ZSS 214 sqq.; Buckland/Stein, pp. 442 sq.; Kaser, RPrl, p. 542; idem, RPrli, pp. 379 sq.; Thomas, TRL, pp. 268 sq.; and, most recently, Maria Rosa Cimma, De non numerata pecunia (1984); Herve

Trofimoff, "La cause dans l'exception non numeratae pecuniae", (1986) 33 RIDA 215 sqq. 143 Cf. e.g. Gai. IV, 116 a, 119; Ulp. D. 44, 4, 2, 3.

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could normally be met with the exceptio doli.101 But sometimes this avenue was not open to the debtor: "Adversus parentes patronosque neque doli exceptio neque alia quidem, quae patroni parentisve opinionem . . . suggillet, competere potest."102 Therefore, an exceptio in factum had to be introduced and this was the exceptio non numeratae pecuniae. It could also be used where the creditor had not behaved fraudulently, perhaps because, as a "cessionary", or as the heir of the creditor, he did not know that the loan had actually never been paid out. But its impact went far beyond these cases. Normally the defendant (borrower) would, in order to substantiate his exceptio doli, have had to prove a negative fact, namely that he had not received the loan.103 That was, of course, very difficult. The main effect of the exceptio non numeratae pecuniae therefore consisted in the fact that the burden of proof, as far as the advancement of the loan was concerned, was shifted (back, as it were) upon the plaintiff. But even independently of any action on the part of the plaintiff, the defendant could contest his obligation by means of a querela non numeratae pecuniae.104 Both the exceptio and the querela at first prescribed after one year, later after five years, and finally, since the time of Justinian, after two years.105 If the remedies were raised in time, neither a stipulation nor any document was of much assistance to the creditor any longer. Otherwise, that is, when the time set for bringing these remedies had expired, the written acknowledgement of the debt was to become, in post-classical times, irrebuttable proof that the loan had in fact been paid out.106

101Gai. IV, 116 a.

102Ulp- D. 44, 4, 4, 16 (on which cf. e.g. Cimma, op. cit., note 142, pp. 38 sqq.). 11)3 Cf., however, Levy, (1953) 70 ZSS 219 sqq.

1 4 Cf. e.g. C. 4, 30, 4 (Ant.); for a recent discussion, see Jean Philippe Levy, "A quels faits 1a 'querela non numeratae pecuniae' tendait-elle a remedier?", in: Studi in onore di Cesare Sanfilippo, vol. IV (1983), pp. 339 sqq.; Cimma, op. cit., note 142, pp. 60 sqq., 166 sqq.; Trofimoff, (1986) 33 RIDA 236 sqq.

for the 19th century, see Windscheid/Kipp, § 372 (concluding, de lege ferenda, on a very critical note). The exceptio has not been incorporated into the modern codifications. It is still in use in South African law (though usually renounced by the parties to the loan); cf. D.J. Jouberl, in: Joubert (ed.), The Law of South Africa, vol. 15 (1981), n. 293.

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CHAPTER 4

Stipulatio poenae

1. The functions of penalty clauses

The imposition of penalties is generally seen today as a concern of the State authorities. Penal elements in private law are very much the exception. Yet all civil-law jurisdictions recognize the possibility of voluntary subjection to a private penalty: a person may promise payment of a sum of money in the event of his doing, or refraining from doing, some act, especially in the event of his not performing an obligation which he has undertaken, or not performing it in the proper manner. Such conventional penalty clauses are useful for two reasons.1 On the one hand they serve as a means of exerting pressure on the other party to behave or not to behave in a specific way; on the other hand, they relieve the creditor of the necessity of assessing and proving his claim for damages in case of non-compliance.

(a) Assessment of damages

Roman lawyers were familiar with both these functions.2 Their conventional penalty was normally cast in the form of a stipulation.3 The use of such stipulationes poenae was highly recommended by Justinian:

"Non solum res in stipulatum deduci possunt, sed etiam facta: ut si stipulemur fieri aliquid vcl non fieri, et in huiusmodi stipulationibus optimum erit poenam subicere, ne quantitas stipulationis in incerto sit ac necesse sit actori probare, quid eius intersit."4

In the same vein, we find Venuleius arguing:

"In eiusmodi stipulationibus, quae 'quanti ea res est' promissionem habent, commodius est certam summam comprehendere, quoniam plerumque difficilis probatio est, quanti cuiusque intersit, et ad exiguam summam dedudtur."5

It is often difficult and cumbersome to establish "quanti ea res est", that is, the amount in which the judge was instructed to condemn, where

1Cf. "Motive", in: Mugdan, vol. II, p. 275; Alfred Sotlner, in: Munchener Kommentar, vol. II (2nd ed., 1985), Vor § 339, n. 3; Detlev Fischer, Vertragsstrafe und vertragliche Schadensersatzpauschaliemng (1981), passim.

2Knutel, Stipulatio poenae, pp. 45 sqq. Early Roman law (like all early legal systems) had focused on the "in terrorem" function; the penalty was used as a sanction for a private wrong. In the course of time the compensatory function came to the fore; it was, in turn, to dominate the scene during the development of the ius commune. Classical Roman taw presents the model of a well-balanced bifunctional approach.

3A penalty could, however, also be added to one of the consensual contracts by way of a pactum adiectum. The penalty could then be claimed with the bonae fidei action arising from that contract.

4Inst. Ill, 15, 7.

5D. 46, 5, 11.

95

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we are dealing with a condictio certae rei. Even more so in cases of a facere stipulation,6 where the judge had to assess "quidquid ob earn rem Num Num A° A° dare facere oportet": one always has to remember that, due to "omnis condemnatio pecuniaria", specific performance could never be enforced and that the problem of fixing monetary compensation or damages thus arose on a much broader scale than it does today. Correspondingly more important were penalty clauses obviating the need to adduce evidence, dispensing with the vagaries of judicial discretion and allowing parties to recover more safely, more speedily and more completely.7 The fact that the English common law traditionally also does not render judgments obliging the debtor to perform his promise and, instead, confines the creditor to a claim for breach of contract,8 seems to be one of the reasons why penal bonds in medieval English law were as popular as stipulationes poenae were in Roman law.

(b) "In terrorem" function

As far as the first of the above-mentioned functions of stipulationes poenae is concerned, C. 2, 55, 1 may be referred to:

"Ex sententia arbitri ex compromisso iure perfecto aditi appcllari non posse saepe rescriptum est, quia nee iudicati actio inde praestari potest et ob hoc invicem poena promittitur, ut metu eius a placitis non recedatur. . . . "

An appeal against an arbiter's award cannot be entertained; one of the reasons given by Emperor Caracalla relates to the stipulationes poenae entered into by the parties when they made their "compromissum": it was their purpose to deter the parties from not abiding by the arbiter's decision, and this purpose would be frustrated were one to allow an appeal. The "in terrorem" function of penalty clauses is also highlighted in Pap. D. 35, 1, 71, 1:

"Titio centum relicta sunt ita, ut Maeviam uxorem quae vidua est ducat: condicio non remittetur et ideo nee cautio remittenda est. huic sententiae non refragatur, quod, si quis pecuniam promittat, si Maeviam uxorem non ducat, praetor actionem denegat: aliud est cnim eligendi matrimonii poenae mctu libertatem auferri, aliud ad testamentum certa lege invitari."

Where somebody promises to pay a penalty if he does not marry Maevia, such promise will be disapproved of. The case is different where some money has been left to Titius provided he marries Maevia. This condition is not objectionable, because it constitutes an "invitation", an inducement to marry. Titius will get a special reward for marrying Maevia, but won't lose anything if he decides otherwise. In the first case, however, he is put under pressure to marry Maevia, and

Knutel, bhputatw poen

M Cf. infra, pp. 776 sqq

Vide supra, pp. 37 (note 24), 90.

Knutel, Stipulatio poenae, p. 53.

Cf. infra. PD. 776 sna.

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that would be in conflict with the rule of "libera sunt matrimonia".9 It is obvious that this side of a stipulatio poenae is — or can be— problematical. Few legal systems have, however, gone as far as the English common law, which disallows penalty clauses altogether.10

(c) Indirect enforcement of unenforceable acts

Stipulationes poenae served a further, very important, function in Roman law: they could be used to enforce performance of, or forbearance from, an act which was not already owed; that is, to make (indirectly) enforceable what had not been made directly enforceable by the parties. One might be tempted to ask why the creditor would contemplate this roundabout way of going about things, instead of making what he wanted the other party to do or not to do the object of an obligation itself. The answer is that in quite a few cases he was not able to do so. Again, we are here touching upon certain consequences of the "omnis condemnatio pecuniaria" rule: where the performance had no pecuniary value for the recipient, a condemnation could not be pronounced. Thus, a stipulatio poenae was the only way of securing immaterial (non-pecuniary) interest. The same applies, as has already been discussed, to contracts in favour of a third party.11 A stipulatio alteri was not enforceable, a stipulatio poenae was. If forfeiture of the penalty was made dependent upon non-performance to the third party, this was a convenient device to exert pressure on the promisor to perform rather than to pay the penalty. Another example is given by Ulpianus in D. 45, 1, 38, 2: ". . . si quis velit factum alienum promittere, poenam . . . potest promittere". 1 f a vendor had guaranteed that the purchaser would not be disturbed in his position ("habere licere"), the question arose whether such a promise covered interferences by third parties too.12 An interpretation along those lines would have clashed with the rule that one cannot promise what somebody else will or will not do. Ulpianus shows the way out: a penalty, forfeiture of which is dependent upon third-party interference with the purchaser's habere.

9 C. 8, 38, 2 and today § 1297 II BGB. Differently § 113 II 1 PrALR.

Vide infra, pp. 107 sq. In the Middle Ages penal bonds were very popular, but in theory their function was apparently compensatory. Even where—as was commonly done—the penalty was fixed at twice the sum owed, ir served to compensate the creditor for his loss of interesse. The practice of relieving defaulting debtors from forfeiture of the penalty "in equity" (that is, by the Court of Chancery) led to the decline of the penal bond and finally to the rejection of penalties by the common law. On the history of penal bonds, on their decline and on the establishment of the compensatory principle, see Simpson, History, pp. 90 sqq., 118 sqq., 123 sqq. Not dissimilar is the development that took place under the influence of canon law in the early ius commune. Cf. Andre Fliniaux, "L'evolution du concept de clause penale chez les canomstes du Moyen-Age", in: Melanges Paul Fournier (1929), pp. 233 sqq.

11 Vide supra, p. 38.

l2Ulp. D. 45, 1, 38 pr.

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2. Non-genuine conventional penalty clauses

All these stipulationes poenae which are not attached to an already existing obligation (that is, those that perform the third of the abovementioned functions) are usually referred to as independent or nongenuine conventional penalties. Their legal nature is described by Paulus in the following words: "Si ita stipulatus sim: 'si fundum non dederis, centum dare spondes?' sola centum in stipulatione sunt, in exsolutione fundus."13 Only "centum" are owed; the promisor is under no obligation to transfer the tract of land. Such a transfer, however, is one way of discharging his obligation. We still find the non-genuine penalty in modern German law,14 but it is living the sad life of a pitiful little wallflower. Its loss of significance is due largely to the fact that modern law has moved away from the principle of necessary condemnatio pecuniaria and has also broadened the scope of contractual freedom of the parties. Yet, analytically, even today it is the most basic form of conventional penalty, of which the genuine conventional penalty merely represents a specialized modification.15 In Rome the nongenuine form was of great practical importance and was regularly employed, even in cases where that which was contained in the conditional part of the penalty stipulation could well have been the object of an obligation in itself. The agreement to submit a dispute to arbitration has been mentioned above. A mere pactum on those lines was not enforceable. Indeed, the technical term "compromissum" indicates that formal promises by both parties had to be given to abide by the award of the arbiter. Of course, the parties could execute two straightforward stipulations to that effect,16 but the resulting protection was so unsatisfactory that it was general practice to enter into a penalty stipulation without any further ado: ". . . quod . . . arbiter ex compromisso . . . sententiam prove sententia dicat dicive iubeat. . .: si quid adversus ea factum erit sive quid factum non erit HS M probos recte dari."17 This is a non-genuine penalty. The parties seem not to have bothered to promise, first of all, to abide by "sententia arbitri". The reason why the penalty was so much more important is obvious:

13D. 44, 7, 44. 5.

14Mentioned, but rather in passing and by no means fully regulated, in § 343 II BGB. South African law, like most other modern legal systems, does not recognize an undertaking of this kind as a penalty: cf. De Wet en Yeats, p. 218 and Guenther H. Treitcl, "Remedies

for Breach of Contract", in: International Encyclopedia of Comparative Law, vol. VII, 16 (1976), p. 91, discussing the English case of Alder v. Moore [1961] 2 QB 57 (CA), where a professional football player who received a sum of money from an insurance company on account of a personal injury undertook to repay that money in the event of his playing professional soccer again.

15 The practical and dogmatic importance of the independent conventional penalty has been emphasized by Eduard Botticher, "Wesen und Arten der Vertragsstrafe sowie deren Kontrolle" 1970 Zeitschrift fur Arbeitsrecht 3 sqq.

16Cf. Ulp. D. 4, 8, 27, 7.

17Cf. Tab. Here. 76. On this fragment and on the structure and content of the compromissum, see Ziegler, Privates Schiedsgericht, pp. 47 sqq. (64, 93).

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"Cum poena ex compromisso petitur, is qui commisit damnandus est, nee interest, an adversarii eius interfuit arbitri sententia stari nee ne."18 Historically, furthermore, the non-genuine conventional penalties were the earliest form of stipulationes poenae and had a considerable influence on the development of the law of obligations.19 At some early stage, a binding promise, enforceable by means of the legis actio per iudicis arbitrive postulationem,20 could have only certa pecunia as its content. Commitment, for instance, to a facere could be achieved only indirectly: by making the other party promise certa pecunia if the desired act was not forthcoming.21 It is from this starting point that certa res and, finally, incertum gradually gained recognition as things that could be owed directly, that is, become acceptable objects of a stipulation in their own right.22 Thus (non-genuine) conventional penalties can well be said to have paved the way for the comprehensive range of classical stipulatio. A similar development (namely an advance from the use of—independent—penalties made conditional upon the occurrence or non-occurrence of a specific act to the recognition of the binding character of this act itself) is observable in the medieval English common law. Like the Roman jurists, the common lawyers started off, not with a general principle of actionability, but with a list of transactions which were actionable through the procedural forms. This formulary system, as in Roman law, determined the content and structure of the common law to a very considerable extent. The most commonly used of the medieval contractual actions was the writ of debt.23 It was available, wherever a "sum certain" was due in law by debtor to creditor. This would usually be the case on the basis of a bond, a sealed instrument, whereby the one party had acknowledged to be the debtor of the other. Where such a bond was made subject to a condition, it became a most flexible institution which could be used to accommodate any lawful agreement.24 These conditional penal bonds "functioned] in what appears to us to be a peculiarly topsy-turvy way. Performance of what may be called the underlying agreement is not imposed as a duty; instead performance is only relevant as providing a defence to an action of debt for the penalty."25 They are what we would call in civil-law terms non-genuine penalties.

18Mod. D. 4, 8, 38.

19Knutel, Stipulatio poenae, pp. 62, 65 sqq.

20Gai. IV, 17 a.

21The conditional promise was probably preceded, historically, by an alternative one ("Stichum aut decern dari spondes?"): cf. Kaser, RPr I, pp. 170, 519.

22The process was reversed in the interesting fragment Paul. D. 38, 1, 39 pr.: an invalid independent (!) penalty is reinterpreted (converted) into a valid promise of what had been in condicione. Cf. Knutel, Stipulatio poenae, pp. 76 sqq.

23Simpson, History, p. 53.

24Idem, History, pp. 90, 112 sqq.

25Idem, History, p. 112.

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3. Genuine conventional penalty clauses

It will not come as a surprise that it is the genuine (or accessory) penalty clause26 that the non-genuine conventional penalty is distinguished from. As § 339 BGB puts it: "If the debtor promises the creditor the payment of a sum of money as a penalty in case he does not perform his obligation or does not perform it in the proper manner. . . . " Here, the penalty secures (proper) performance of what is already owed. Hence, as far as genuine penalty clauses are concerned, we are always dealing with a two-membered transaction. Often the obligation, to which a stipulatio poenae was added, had also been cast in the form of a stipulation. Then we have a double stipulation of the type: "Pamphilum dari spondes?" "Spondeo. " "Si Pamphilum non dederis, decern dari spondes?" "Spondeo." This would have been the most correct form, but if the promisor's answer was given only once ("Pamphilum dari spondes? Si non dederis, decern dari spondes?" "Spondeo."), that was acceptable too.27 A stipulatio poenae could, however, also be attached to other obligations, for instance to a contract of sale.28

One problem, in particular, is raised by the specific structure of this type of stipulatio poenae: what is the relationship between the obligation to give Pamphilus and the obligation to pay one hundred, once the penalty of centum has become exactable?2y Three different solutions are possible:30 the two obligations can be cumulatively, alternatively or successively linked, i.e. the plaintiff can be allowed to claim both Pamphilus and centum, or he can have the option of choosing either the one or the other, or he can be confined to claiming only centum. As far as the double stipulations are concerned, the following fragment is of particular interest:

"Sed si navcm fieri stipulates sum et, si non feceris, centum, vidcndum, utrum duae stipulationes sint, pura et condicionalis, et existens sequcntis condicio non tollat

26 I n many mode rn s yste ms the conce pt of a "pe nalty cl ause " is confine d to the se case s .

Cf., for example, Treitel, op. cit., note 14, p. 94: ". . . the general principle that a penalty clause contains a merely accessory obligation". Treitel also quotes art. 2117 of the Louisiana Civil Code, where the accessory nature of the penalty clause is expressed very clearly: "A penal clause is a secondary obligation entered into for the purpose of enforcing performance of a primary obligation." As to the consequences of the accessoriness (if principal obligation is invalid, penalty is invalid, as well; assignment of principal obligation involves assignment of the penalty, etc.), cf. § 344 BGB; Sollner, op. cit., note 1, § 339, nn. 6 sqq.; De Wet en Yeats, pp. 219 sq.

27Cf. Pap. D. 45, 1, 115, 2; Paul. D. 17, 2, 71 pr.

28Cf., for example, lui. D. 19, 1, 28. Also settlements and other pacta on the basis of which the praetor would grant an exceptio pacti could be secured by penalties: cf. e.g. Scaev. D. 45, t, 122, 3; Paul. D. 23, 4, 12, 2.

29"On the problem of a penal stipulation combined with another, the sources are in a sad state of confusion": David Daube, "Slightly Different", (1961) 12 Iura 91. But see Levy, Konkurrenz, vol. II, 1, pp. 117 sqq. and, more recently, the detailed discussion by Knutel, Stipulatio poenae, pp. 262 sqq. (double stipulations), pp. 291 sqq. (pacta), pp. 320 sqq. (bonae fidei contracts).

30Windscheid/Kipp, § 285. 4.

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