the will of the testator and the clausula “rebus sic stantibus” occurrences of such applications are to be found precisely in cases concerning testamentary provisions. Moreover, that relation has another particularly challenging aspect. Whereas in the field of contract law the change of circumstances can only be invoked by the contracting party whose will is no longer realised in the obligatory relationship,6 in the case of a radical change of circumstances that comes to modify the (presumed) will of the testator, an interpretive effort is required to clearly determine his or her will and a judicial intervention is required to effectuate it. This principle has its foundation in Roman law, which entrusted the reconstruction of the deceased’s will to the discretion of the judge, according to a well-known rule in Justinian’s Code;7 the judicial power of interpretation was required especially in the case of situations not foreseen or matters not expressly regulated by the deceased. The particular concern surrounding the drafting of testaments, essentially due to the requirement that the document fully and accurately reflect the actual will of a subject who could no longer be questioned, had caused the creation of many rules for their interpretation by legal science since the Roman age.8 The correct understanding of theverba testamenti, the actual wording of the written document, was considered to be of the utmost importance to ascertain the will of the testator – for most of the controversies on testaments arose with regard to its reconstruction –, and had a more pronounced relevance than the relation between legal acts and their documentation in other situations.9 224 6 See Osti 1918, pp. 8–9: “il concetto di sopravvenienza vuol giustificare, per definizione, proprio una reazione della volontà dell’obbligato contro la sussistenza del vincolo obbligatorio”. 7 C. 6.42.7: “voluntatis defuncti quaestio in aestimatione iudicis est” (the investigation of the testator’s will is reserved to the judge’s appreciation). 8 For the main rules developed by Roman law and inherited by ius commune scholarship in the age of the glossators, see Chiodi 1997, in particular pp. 82–104. 9 I obviously refer to the written drafting of the nuncupative testament, the most usual form of testament in the Middle Ages after the rebirth of legal studies and the revival of Roman law. Although the writing had only a probatory function in this type of testament, differently from the testamentum in scriptis which required written formad substantiam, and although free of the extreme formalism that characterised the latter, the nuncupative testament drawn up by a notary had also to be carefully drafted, as is clearly shown in Rolan-
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