Mortis causa stipulatio. Il lemma di Pompeo Festo (L. 152) al vaglio delle risultanze giurisprudenziali

The present essay aims to investigate the meaning of Festus’ lemma “mortis causa stipulatio” [L. 152] which refers to a definition by Labeo placed in correlation with a previous explanation ascribed to other jurists (“quidam”). The analytical key makes use of an unprecedented critical comparison between the voice of Festus and the evidences of Roman jurists (received through Justinian’s Digest) which document negotiating activities involving a stipulari/promittere expressly characterized as “mortis causa”. Among the relevant passages found, three (D. 39.6.31.3, Gai. 8 ad ed. prov.; 39.6.35.7, Paul. 6 ad leg. Iul. et Pap.; 24.1.52.1, Pap. 10 quaest.) concern as many cases (somewhat special) of mortis causa donatio in the form of an obligatory promise; in another case (D. 33.4.11, Paul. 7 resp.) to the promise of restitution of the dowry also made for the purpose of donation due to death; in the end, a further passage (D. 23.3.76, Tryph. 9 disp.) specifically pertaining to the constitution of a dowry carried out according to the future death of the settlor. Having considered the documentary results adduced and the opinions expressed by modern experts in Roman law over the course of time, the study takes a position both with regard to the non-exclusive pertinence of Labeo’s definition with the m. c. donatio and with regard to the possibility that the “mortis causa stipulatio” (to which Labeo was referring) has assumed the form of an act sub condicione albeit sui generis. Subsequently, the framework of the evidences is enriched with the analysis of D. 44.4.4.1 (Ulp.76 ad ed.) where a responsum from Labeo (and taken up by Iulianus) is reported which could present links with the definition of the same jurist reported by Festus and, afterwords, of a passage from Valerius Maximus (8.2.2) containing the recollection of a sentence issued (first alf of 1st century B.C.) by the jurist C. Aquilius on a legal case pertaining to an obligation for the purpose of donation assumed due to the feared death of the settlor. In conclusion, new explanatory cues are offered in relation to the sense of the position expressed by Labeo on what constitutes “mortis causa stipulatio” and on the possible terms of dissent with the opinion expressed by other jurists (“quidam”) in this regard.