francesca macino Apparently, the introduction of the clausula “rebus sic stantibus” among the rules for the interpretation of testaments could have generated a conflict with other principles established by Roman law and adopted by medieval jurists, for example Justinian’s Digest rule that when the words of the testament are unambiguous, an investigation into the will of the testator becomes inadmissible.10 Nevertheless, certain typical situations, concerning the validity and persistence of testamentary dispositions in the case of a change in the circumstances that had been taken into account by the testator when forming her or his last will, had already been identified in Roman law and continued to be subject to the same rules in medieval law: for instance, the birth of a posthumous child, “de quo non praevidit vel cogitavit testator”, which caused the invalidationex ipso iure of a testament that was otherwise perfectly valid;11 the occurrence of serious enmities that might invalidate a bequest; specific cases of supervening indignity in the person of the recipient, which coincided with the causes of disinheritance;12 and in general, changes in the quality and in the personal and social condition of the beneficiaries of testamentary dispositions. In late medieval and early modern times, any unforeseen change of circumstances coming under theclausulawas thus added to those typical situations, so that the clausula became a general principle ruling the in225 dinus Passeggeri’s work, the major reference for testament drafting in the classical phase of ius commune: Rolandini Summa totius artis notariae (ed. 1574), II.VIII, De testamentis et ultimis voluntatibus, fols. 226r–233v; Flos testamentorum, ibid., fols. 234r–266v. The risk of invalidity of testaments was evidently very high, given that the practice was always to affix the clausula finalis or codicillaris to the document, consisting of the declaration by the testator that if the testament was ‘broken’, i.e. declared invalid, the provisions would remain valid by virtue of the codicil, a type of deed subject to fewer formalities under D. 29.1.3. For a systematic overview of the discipline of testaments in legal history, reference can still be made to the classic Besta 1935 and Leicht 1943. 10 D. 32.25.1: “cum in verbis nulla ambiguitas est, non debet admitti voluntatis quaestio”. 11 About the occurrence of such a birth, “which the testator did not foresee and did not think of”, see Rolandini Flos testamentorum(ed. 1574), fol. 256r; this specific case is still provided for in today’s legislation, e.g. in art. 687 of the Italian Civil Code. On the nature and meaning of this Italian legal provision of testamentary revocation due to the supervening presence of children, see Giardini 2003, pp. 177–208. 12 See Besta 1935, pp. 28–30.
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