francesca macino ferred to the usual practice of decisiones on this point;23 several decisions issued by the supreme courts of the ancien régime, for example the Neapolitan Sacro Regio Consiglio and the Mantuan Senato, actually stated that the exclusion of females following their renunciation in favour of male heirs was valid “rebus sic stantibus”, i.e. as long as the males were alive, so that, if they predeceased their father, the renunciation did not affect the daughters’ legitimate succession, since with the death of the siblings the cause of the renunciation ceased to exist.24 The general acceptance and preference accorded to theclausulainsuccession matters also survived the crisis that the theory underwent in other fields of law, such as contract law, since the beginning of the modern age. During the 16th century the recognition of the generalised efficacy of the “rebus sic stantibus” principle had indeed begun to waver; the beginning of its demise is traditionally placed in legal humanism, to which must be added the contribution of the natural law school, that finally denied its efficacy in contract law or greatly restricted its scope of application.25 One of the most outstanding representatives of legal humanism, Andreas Alciatus, had in fact drawn a distinction between unilateral and 231 mulation –, after Bartolus had first extended the principle to renunciations (Bartoli a SaxoferratoIn secundam Digesti veteris partem[ed. 1615], fol. 40v); see Bartholomaei a Salyceto In secundam Digesti veteris partem(ed. 1586), fol. 33r; see also the later sources quoted by Rummel 1991, pp. 51, 53–54, 61–62, 147–149. 23 “Talis renunciatio censetur facta favore masculorum, et intelligitur rebus sic stantibus […] ita loquuntur decisiones” (this renunciation is deemed to be made in favour of the male heirs and must be understoodrebus sic stantibus […] so the decisions state); Roberti Marantae Aurea praxis (ed. 1580), p. 615, n. 15. 24 See Thomae Grammatici Decisiones (ed. 1551), dec. 63, fols. 86v–87r; Ioannis Petri Surdi Decisiones Sacri Mantuani Senatus (ed. 1612), dec. 252, pp. 470–471, especially n. 4. In one of the most widespread repertories of decisiones inthe lateius commune age, theclausulais treated under the traditional sedes materiae of D. 12.4.8, and the case of the gifted daughter who renounces her father’s succession on account of the existence of male siblings is presented as the main case in point; Ioannis Aloysii Ricci Collectanea decisionum(ed. 1619), collect. 1771, p. 170. For the application of the clausula “rebus sic stantibus” in the decisiones between the 16th and 17th centuries, not only in matters of succession, see Macino 2023. 25 A synthesis of the decline of theclausulainthe17thand18th centuries can be found in Thier 2011, pp. 19–27; see also Wijffels 1998, pp. 257–265; for the early modern age, the different positions on the effectiveness of theclausulain the treaty doctrine are summarised in Lesaffer 2000, p. 191.
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