Conditions contra bonos mores and late classical jurisprudence
Quite a variety of texts deal with conditions that were denounced as being contra bonos mores. Paulus. D. 28, 7, 9 reflects the position in late classical law when he states quite generally:
"Condiciones, quae contra bonos mores inseruntur, remittendae sunt, vcluti 'si ab hostibus patrem suum non redemerit', 'si parentibus suis patronove alimenta non praestituit'."[3593]
Both examples are concerned with an unacceptable lack of reverentia:[3594] a legal system can hardly condone a condition not to redeem one's father from captivity or not to provide maintenance for patrons or parents.
Other cases handed down to us in our sources refer to infringements of the freedom of (prospective) family relations ("si uxorem non duxeris", "si films non susceperis"), to an incitement to commit atrocities ("si homicidium feceris") or to an objectionable disregard for decent and dignified behaviour ("si larvali habitu processeris").[3595]These texts have taken us to the late classical period, during which we see an increased interest in the legal relevance of the boni mores. Papinian in particular contributed substantially to the debate.[3596] One of the texts ascribed to him is D. 28, 7, 15; it equates the immoral with the impossible ("... nam quae facta... contra bonos mores fiunt, nee facere nos posse credendum est") and was to emerge as one of the focal points for the discussion of illegal and immoral conditions among the authors of the ius commune.[3597] Thematically, a shift of emphasis in the suppression of immoral transactions is recognizable from the time of the Severan Emperors: pacta (rather than contracts) contra bonos mores became the centre of attention.[3598] A whole string of statements, usually very generally phrased, has come down to us: "Pacta, quae contra leges constitutionesque vel contra bonos mores fiunt, nullam vim habere
indubitati iuris est",[3599] "Pacta vel conditiones contra leges vel decreta principum yel bonos mores nullius sunt momenti",[3600] to mention two examples.[3601] Characteristically, the boni mores appear in both of them as part and parcel of a catalogue of legal sources; by the end of the 3rd century A.D. they thus seem to have been perceived as a normative system equal to the ins.[3602] [3603] 4.
More on the topic Conditions contra bonos mores and late classical jurisprudence:
- The late classical jurisprudence
- References to the boni mores in classical law
- The end of classical jurisprudence
- THE CULMINATION OF CLASSICAL JURISPRUDENCE
- Ill CHARACTER AND TENDENCIES OF CLASSICAL JURISPRUDENCE
- 11 Late Classical Execution Practices
- The Pre-classical Period (Late Republic)
- The Post-classical Period (Late Empire or Dominate)
- The content of the boni mores
- The boni mores and the ins commune
- Rules of interpretation: the contra proferentem rule
- Reference to the boni mores in modern law
- II. Guardianship of a Woman Evidence pro and contra