INTRODUCTION

The names of the conditio si institutus sine liberis decesserit and the conditio si testator sine liberis decesserit both suggest a Roman origin. That the first has a Roman origin is commonly accepted but the Roman origin of the second has been doubted. Re-examination of the question suggests that both these views are at least partly wrong and that some of those who have admitted the Roman origin of the conditio si testator have misconstrued its source. These considerations would in themselves justify the re-examination but the adoption of the conditiones also affords an interesting illustration of the manner in which Roman law has influenced Scots law.

ROMAN LAW - THE TEXTS IN THE CORPUS JURIS CIVILIS

For the purposes of this article it is necessary to consider only the law of Justinian as contained in the Corpus Juris Civilis. The essential texts are four in number – D 35.1.102, C 6.42.30, C 6.25.7(6).1-3 and C 8.55(56).8. The first three relate to the conditio si institutus and the fourth relates to a situation analogous to that dealt with by the conditio si testator. D 35.1.102 is a decision given by (or attributed to) Papinian who holds (or is said to have held) that where a grandfather made a disposition to his grandson, burdened with a fideicommissum in favour of the testator’s son, if the grandson should die before he reached the age of thirty, the fideicommissum failed when the grandson died under the age of thirty leaving children.