Clausula rebus sic stantibus

(a) Origin and development of the clausula

One of the most interesting, and potentially most dangerous, inroads into pacta sunt servanda has, however, been the so-called clausula rebus sic stantibus: a contract is binding only as long and as far as (literally:) matters remain the same as they were at the time of conclusion of the contract.

It is obvious that such a proviso, if broadly interpreted, can be used to erode the binding nature of contractual promises very substantially; not surprisingly, therefore, the clausula doctrine fell into oblivion in the late 18th and the 19th centuries:^[3021] the heyday of "classical" contractual doctrine when freedom of contract, economic liberalism and certainty of law reigned supreme. The Roman lawyers had not known anything like it either. Moral philosophers were the first to draw attention to the change of circumstances and thus to sow the seed for the clausula rebus sic stantibus. "Omnia esse debent eadem, quae fuerunt, cum promitterem, ut promittentis fidem teneas..

this general proposition, which was to be quoted time and again, had originally been formulated by Seneca.^[3022] ^{^[3023] Equally influential was the example of the sword which does not have to be returned to a depositor who has become insane. It goes back to Cicero, De officiis ("Si gladium quis apud te sana mente dcposucrit, repctat insaniens, reddere peccatum sit, officium non reddere"),²¹⁹ and was taken up by St. Augustine.^[3024]}

St. Augustine's text, in turn, was incorporated into the Decretum Gratiani (c. Ne quis).^[3025] It was a gloss to this canon that became the real starting point for the medieval clausula doctrine—for it states quite categorically:. semper subintellegitur haec conditio, si res in

eodem statu manserit."^[3026]" "Quod propter novum casum novum datur auxilium" was the reason provided for this assertion.^[3027] St.

Thomas of Aquinas reaffirmed the same position from the point of view of moral theology; for, according to him, the breach of a promise is not a sin "si sint mutatae conditiones personarum et negotiorum".^[3028] Bartolus introduced the idea of an implied condition "rebus sic se habentibus" into the civil law—confined, however, to the specific legal act of renuntiatio.^[3029] Baldus extended it to cover all promissiones,^[3030] and by the end of the 15th century, its field of application was described in the broadest possible terms: in dispositione legum, in ultima voluntate, in contractibus, in privileges, in iuramento, in statutis iuratis,^[3031] or, quite simply, in omnibus actibus vel dispositionibus.^[3032] For the following three centuries, the doctrine was firmly entrenched; in the words of Augustin Leyser: "Omne pactum, omnis promissio, rebus sic stantibus, intelligenda est, ut Seneca lib. 4 de Beneficiis c 35 rem clarius explicat."^[3033] Whether the contract has to be honoured or not depends on the hypothetical will of the parties; for the obligation falls away "si tanta incidat mutatio, ut non amplius pristina rerum facies supererit, atque promissor, si earn praevidisset, pacturus non fuisset". This explains what appears to be, at first blush, a strange coincidence: namely, that the clausula doctrine had been promoted most vigorously by those authors who had also been instrumental in establishing the very principle now qualified by the clausula: pacta sunt servanda. For at the bottom of both the principle that all pacts are actionable and of its limitation there lies the specific significance attributed by canon lawyers and moral theologians alike to the human will.^[3034]

(b) The clausula from the 17th century to today

The 17th century was a flowering time for the clausula doctrine (partly, perhaps, in response to the devastating wars of the time)^[3035] and it became part and parcel of the usus modernus as well as of the systematic endeavours of the natural lawyers.^[3036] It attained great prominence in the field of public international law,^[3037] but in the area of private law its star ultimately began to wane. Nineteenth-century legal science was predominantly hostile to it, and the clausula thus disappeared.^[3038] ^{^[3039] But the underlying idea had only temporarily lost its attraction.}

Thrown out by the door, as Windscheid put it, it will always re-enter through the window. The will of a person usually relates to a certain given set of facts only; it has been formed on the basis of certain suppositions. If these turn out to be wrong, it is not always fair to hold that person by his word. On the other hand, however, the promisor's interest in having the contract set aside must be balanced against the interest of the community at large in certainty of the law. Some kind of criterion is therefore needed to attempt to achieve the balance. Windscheid's own " Voraussetzungslehre" (doctrine of tacit presupposition) was one such attempt,^[3040] but it did not commend itself to the drafters of the BGB.^[3041] The BGB does not, in fact, contain a general rule dealing with the problem of changed circumstances. The modern version of the clausula rebus sic stantibus therefore had to be developed

extra legem by courts and legal writers; it is the doctrine of "Wegfall der Qeschdftsgrundlage" (collapse of the underlying basis of the transaction), which was formulated, initially, in response to the problems posed by the consequences of the First World War on the performance of long-term contracts,²⁵⁸ and which has become part and parcel of the modern German law of contract.²⁵⁹ Its functional equivalent in English law is the doctrine of frustration of contract.²⁶⁰

Paul Oertmann, Die Geschaftsgrundlage, ein neuer Rechtsbegriff (1921). On the judicial reception of this doctrine since the famous decision of RGZ 103, 328 sqq., see Bernd Riithers, Die unbegrenzte Auslegung (1973), pp. 40 sqq.

²⁵ Cf., for example, Karl Larenz, Geschaftsgrundlage und Vertragserfüllung (3rd ed., 1963); Matte Diesselhorst, "Die Geschaftsgrundlage in der neueren Rechtsentwicldung", in: U. Immenga (ed.), Rechtswissenscha.fi und Recht sent wicklung (1980), pp. 153 sqq.; Giinther H. Roth, in: Münchener Kotnmentar, vol.

II (2nd ed., 1985), § 242, nn. 465 sqq.; for a crisp account of the development cf. also Joachim Meinecke, "Frustration in the West German Law of Contract", (1978) 13 The Irish jurist 83 sqq.

²³³ Treitcl, The Law of Contract, pp. 663 sqq.; on its history, see Kegel, op. cit., note 256, pp. 172 sqq.; for a comparison, cf. Stefan Schmiedlin, Frustration of Contract und clausula rebus sic stantibus (1985). The Louisiana Civil Code, interestingly, deals with the problem as being one of an error in motive, which can under certain circumstances constitute a ground for the voidability of contracts: "No error in motive can invalidate a contract, unless the other party was apprised that it was the principal cause of the agreement, or unless from the nature of the transaction it must be presumed that he knew it" (art. 1826). For details, see Timothy Hofi", "Error in the Formation of Contracts in Louisiana: A Comparative Analysis", (1978-79) 53 Tulam LR 358 sqq.

<< | >>

↑

Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

Clausula rebus sic stantibus

More on the topic Clausula rebus sic stantibus: