Convalescence; partial invalidity
Invalidity is normally a final verdict on the fate of a transaction. What is deficient in the beginning cannot become valid merely by the lapse of time.33 There are, however, situations, where an—originally—invalid transaction is allowed to "convalesce".
In modern law one can think of provisions, according to which a contract for the alienation of land, concluded without observance of the prescribed form, becomes valid it transfer and registration in the Land Register have taken place.34 Likewise, the disposition of a non-owner over somebody else's property is invalid unless the owner has consented. The disposition becomes valid, however, if the owner (subsequently) ratifies it, or if the non-owner acquires the object.35 This phenomenon of a "convalescence" occurs repeatedly in our Roman law sources. We have already come across a variety of examples. The rule of "morte Cincia removetur" falls into this category, 6 as does the idea that prohibited(1911), pp. 211 sqq. In this article Kipp develops his famous theory of what he calls '’double-effects'1 in the law. But cf. also Bernd Ochers, "Doppclwirkungen im Recht”, (1969) 169 Archil' fur die civilistische Praxis 67 sqq.
24 Cf. generally Hubner, Festschrift Wieacker, pp. 399 sqq.; cf. also his comparative observations on p. 402.
3(1 Ulrich Hubner, "Personale Relativierung der Unwirksamkeit von Rechtsgeschäften nach dem Schutzzweck der Norm", in: Festschrift für Heinz Hubner (1984), pp. 487 sqq.
3 Cf. e.g. Theo Msyer-Maly, in: Münchener Komtnentar, vol. 1 (2nd ed., 1984), § 138, nn. 134 sqq.
32 For details, see Zimmermann, Moderationsrecht, passim; contra: Johannes Hager, Gesetzes- und sittenkonforme Aufrechterhaltung von Rechtsgeschäften (1983); Alfons Bürge, Rechtsdogmatik und Wirtschaft (1987); Manfred Lieb, in: Münchener Komtnentar, vol. II, 3 (2nd ed., 1986), § 817, n.
17.33 Paul. D. 50, 17, 29: "Quod initio vitiosum est, non potest tractu temporis convalescere."
31 § 313, 2 BGB.
2 § 185 II BGB. For details, see Filippo Ranieri, Alienatio convalescit (1974), pp. 36 sqq., 51 sqq.
3fl Cf. supra, p. 484.
donations between spouses became valid with the death of the donor.[3440] The exceptio senatus consulti Macedonian!, too, was removed (and the mutuum thus effectively validated) if the paterfamilias or the son (after he had ceased to be alieni iuris) ratified the loan.[3441] Generally speaking, we are dealing here with situations where the obstacle to the validity of the transaction subsequently falls away.
Two further escape routes from the harshness connected with the complete and final invalidity of legal transactions were paved by the Roman lawyers. The one may be summed up in the maxim "utile per inutile non vitiatur":[3442] if only part of a transaction was invalid, the rest of it, as a rule, remained unaffected. Attention has already been drawn to the very flexible manner in which this problem was approached.[3443] "Utile per inutile non vitiatur" was adopted by the Swiss[3444] and Austrian[3445] codes, whereas the BGB has opted, in case of doubt, for the invalidity of the whole transaction.[3446] Today, a tendency prevails to return to the Roman maxim.[3447]
3.
More on the topic Convalescence; partial invalidity:
- Invalidity and Reasons for Invalidity
- INVALIDITY
- Invalidity and Revocation of a Will
- Excursus: utile per inutile non vitiatur
- Impossible, illegal and immoral conditions
- 4. Common mistake
- 1. The possible effects of illegality
- APPENDIX I. THE RELATION OF THE CONTRACTUAL ACTIONS ADIECTITIAE QUALITATIS TO THE THEORY OF REPRESENTATION.
- This part of the study investigates general issues related with the question to law behind the documents.
- Evaluation
- The problem of mass enslavement
- Lack of seriousness
- 1. Terminological and conceptual problems
- Technicalities beyond belief
- Additional statutory relief: repetundae and maiestas
- A brief history of the theory of the commons
- The Search for a Disinterested Perspective
- Notes
- BACKGROUND: THE THEORIES OF PUNISHMENT AND THE REMORSE DISCOUNT
- Hume’s Position Considered for the Fifth Time