francesca macino The principle was affirmed in relation to a testament in one of the earliest and most important consilia on the subject, one that would rise to the rank of auctoritas in later scholarship, consilium84 by Petrus de Ancharano, in which we also find one of the first appearances of the phrase “rebus sic stantibus” (while different formulations had previously been used). This text clearly includes the testament within the scope of the clausula, thus introducing the possibility of a corrective intervention in the testator’s will.17 The case concerned the testament of a deceased Azolina, who had declared Franceschina, abbess of the monastery of St Agnes, to be her universal heir, and appointed her as executor among others,18 determining that a certain amount of money be given to the monastery as a special bequest and the rest be distributed to help the poor for the salvation of her soul, as would seem appropriate to her executors (commissarii). In the time following the drafting of the testament in 1383, Azolina herself had entered the monastery as a nun, and after her death in 1403, of all the executors only the abbess was still alive and the monastery had become enormously impoverished, unable to meet its own expenses and guar227 16 It is no mere coincidence that the mention of the clausula, outside of academic or otherwise theoretical works, is to be found in the consilia and not in other diplomatic typologies. Since it was considered as an implied term, no traces of the clausula can be found in the actual documentation of legal transactions; instead it could be introduced in court, at the moment of a legal controversy, as an argument for release from obligations. For this reason, the textual typologies in which its mention can be found are those linked to the trial, either in the field of advocacy or legal advice (consilia) or at the time of the court decision(decisiones).Bothconsiliaanddecisiones are textual products of legal practice that enjoyed a great diffusion in the late Middle Ages and the early modern age; see di Renzo Villata 2008, with an ample survey of the previous historiography. 17 Petri de AncharanoConsilia(ed. 1585), cons. 84, fols. 41v–42r; theconsiliumhas been pointed out in Macino 2015, pp. 80–82 and 85, both as perhaps the first attestation of the extension of the effectiveness of theclausulato all dispositions of will, and as one of the first occurrences of the formulation “rebus sic stantibus”, that later would become standard. 18 With regard to legacies destined for charitable purposes (legata elemosynarum) or sums not destined for a specific use (e.g. the purchase of a given religious ornament), it was common practice for the testator to choose commissioners in charge of their distribution, often calledexecutores, who were almost always heads of religious institutions and had the role of mandataries; see Rolandini Flos testamentorum(ed. 1574), fol. 257v; the figure of the executor is defined during the Middle Ages through the intervention of canon law, thanks to the frequency of these kinds of legacies; see Leicht 1943, pp. 262–265.
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