the will of the testator and the clausula “rebus sic stantibus” terpretation of testaments,13 even though the introduction of an unspoken condition to supplement the testament’s content constituted a creative act, a fiction (fictio) that modified reality, and most of all modified the declaration of will contained in the testamentary document. As mentioned above, between the 14th and15th centuries a comprehensive definition of the theory of the clausula, more detailed than in the age of the glossators,14 can be first traced in texts born out of legal practice, and relating to cases concerning the validity of testamentary dispositions after an unexpected change of circumstances. Since the end of the 14th century and thanks to the work of theius commune scholarship, the principle of theclausulahad in fact become more widespread in doctrine and in practice,15 and had begun to be introduced and referred to in the productionof consilia.16 226 13 For the evolution of theclausulainto a general principle and its transformation into aGeneralklausel, see also Köbler 1991, pp. 30–31. 14 The glossators’ school had begun to reflect on the problem of changed circumstances by commenting on a few passages of the Digest, and from there had extrapolated the general maxim “secundum praesens iudicamus et rebus sic se habentibus loquimur” (we judge according to the present situation and speak as long as it stays unaltered), gl. potest ad D. 12.4.8, attributed to Azo; the point had been also touched upon in one of Pillius’s Quaestiones aureae (ed. 1560), n. 79, pp. 145–147, in which an implied term “si res in eodem statu duraverit” (if the situation has remained in the same predicament) was mentioned in relation to the occurrence of a new and unforeseen event. On the canon law side, in the first half of the 13th century a gloss by Iohannes Teutonicus on a passage of Gratian’s Decretum stated that an unspoken condition “si res in eodem statu manserit” is implied in all promises (gl. furens ad C. 22, q.2, c.14Ne quis). The achievements on the subject by previous legal science, both of the civil and canon law tradition, had then been summarised during the 14th century in the work of Bartolus a Saxoferrato and most of all of Baldus Ubaldi, who had enunciated theregulathat “omnis promissio intelligitur rebus sic se habentibus” (every promise must be understood valid as long as things remain the same), in his commentary on D. 46.3.38: Baldi Ubaldi In Digestum novum(ed. 1599), fol. 36v, and had been probably also the first to speak of aclausulain relation to oaths (in his commentary on C. 6.42.19; Baldi Ubaldi In sextum Codicis librum[ed. 1599], fol. 151r). For further details and historiography, see Macino 2015, pp. 71–73, 76–77. 15 Paulus Castrensis, a renowned pupil of Baldus, emphasised the frequency with which the gl. potestadD. 12.4.8 was adduced in legal practice: “Nota istam glossam quae semper allegatur, quod verba sunt intelligenda rebus sic se habentibus” (Pauli Castrensis In secundam Digesti veteris partem[ed. 1575], fol. 42v). Petrus de Ancharano and the consiliumn.84
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