francesca macino The decisive factor that bound testamentary dispositions to the sphere of promises, oaths, and agreements, and determined the extension of the implied term “rebus sic stantibus” to testaments, was the centrality of will (voluntas) in the discipline of testamentary succession. The juxtaposition of testaments and contracts is indeed traditional in legal science and depends on the fact that both are acts of will representing expressions of private autonomy, and come under the category of juridical act (Rechtsgeschäft, negozio giuridico, acte juridique).3 Today, theclausulais primarily discussed in the context of international treaties4 and most of all in the field of contract law, in which the expression “rebus sic stantibus” is used to indicate the principle of the relevance of changed circumstances with respect to the obligation to perform the contract; this is one of the questions of contract law upon which doctrine and jurisprudence have dwelt the most, even in very recent times.5 The relation of the clausula to testaments is, on the other hand, a less studied topic, but whose history offers some points of interest; the medieval jurists, as was often the case in the ius commune system, came to conceptualise the theory through its application in practice, and the first 223 3 For the equating of contracts and mortis causa acts in the scholarship of ius commune, see Grossi 1960, pp. 283–287. 4 On the origins and theoretical basis of this application, which can be traced back to the Dutch natural law school of Hugo Grotius, see Kaufmann 1911; the principle was adopted by art. 62 of the 1969 Vienna Convention on the Law of Treaties, on which see Back Impallomeni 1974 and Sico 1983. 5 Thanks to the work of doctrine and jurisprudence in the course of the 20th century, and after the early introduction of provisions on “eccessiva onerosità sopravvenuta” in arts. 1467–1468 of the Italian civil code (with explicit reference to theclausulainRelazione 1942, p. 145, nn. 665–666), at the beginning of the 21st century the increased attention paid to the change of circumstances in contractual matters has been witnessed by the efforts of many legal systems to introduce the principle into their legislation: for example, § 313 of theGermanBGBon “Störung der Geschäftsgrundlage” of 2002, for which see Favale 2022; theDCFR(Draft of a Common Frame of Reference) III, art. 1:110 of 2009; but especially art. 1195 of the French Civil Code as amended byOrdonnance no. 2016–131, which introduces the consideration for the “changement de circonstances imprévisible” and for which see, also from a historical perspective, Moscati 2020. The emergencies of recent years have then led to a renewed focus on the matter; see for example Cardilli 2020, in particular pp. 114–120, and Tuccari 2020.
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