Exceptio Doli Generalis[226]

(a) The Background

Unlike the clausula rebus sic stantibus, the exceptio doli (defence of fraud, or bad faith), was of Roman origin.^[227] It had become part of the ins commune though, of course, it had lost all the procedural associations originally connected with the exceptio doli of classical Roman law.

Essentially, it was the label commonly used for the notion of bona fides suffusing contemporary as much as Roman contract law.^[228] By raising the exceptio doli, the defendant asserted the notion of good faith, under the auspices of which contractual disputes had to be decided.^[229] Obviously, it gave the judge considerable leeway and, in particular, it provided him with the opportunity to take account of substantive notions of justice. This was the main reason why the opinion of legal writers vacillated considerably. Savigny and his followers in the first half of the nineteenth century had been well disposed towards it, and under their influence it had been brought to bear on Prussian law and on the new law relating to bills of exchange.^[230]' From about the 1870s, however, more and more writers expressed misgivings about the practical application of the exceptio doli generalise^[231] The modern judge, it was argued, was no longer in the position of a Roman praetor. He was subject to the law and could not simply act ii/ris civilis adiuvandi, suppleiidi, or cor rigend і causa. The exceptio doli was thus only available in cases where it had specifically been recognized in Roman law. When the BGB was drafted, the tide had began to turn again. Dernburg^[232] and Regelsberger^[233] were among those who argued that 'the productive force' (Dernburg) of the exceptio doli general is had not been extinguished and that it was still required as a vital mechanism for the implementation of substantive justice.^[234] Once again, we see that by the end of the century classical contract doctrine was past its zenith.

The position adopted by the BGB is not quite clear. On the one hand, acceptance of the exceptio doli into the code was repeatedly rejected.¹³² On the other hand, it was argued that such acceptance was unnecessary in view of a number of provisions already contained in the draft code which could be seen as manifestations of the exceptio doli generalis)³³ In fact, however, these provisions (§§ 226,¹³⁴ 242, and 826^,3? BGB) were all rather narrow. This is true, particularly, of § 242 BGB which merely relates to the manner in which performance must be rendered.¹³⁶ Determination of the content of a contract is regulated in § 157¹³' BGB and is regarded as a matter of interpretation. Nevertheless, the continued existence of the exceptio doli generalis was widely accepted in the first textbooks, commentaries, and lectures on the new Code, be it on the basis of §§ 157,226, and 242 BGB or simply as a result of 'the grace of God'.¹³⁸ The exceptio doli generalis was widely welcomed as an antidote against the literalist and narrow

^1,2 See, e.g., Horst I leinrich Jakobs and Werner Schubert, Materialien zur Entstehungsgeschichte des BGB, Allgemeiner Teil, vol. ii 0978), 171.

¹³³ See, e.g., the statement on behalf of the government in the course of the second reading of the BGB in the Reichstag, in Mugdan (n. 27) 1311.

¹³⁴ ‘The exercise of a right is unlawful, if its purpose can only be to cause damage to another.' On the historical background to this rule (aernulatio), see Bruno Huwiler, 'Aequilas und bona fides als Faktoren der Rechtsverwirklichung·, in Bruno Schmidlin (ed.), Vers ritt droit prive eutvpfcn commun? Skizzen zum gemeitteurnpitischen Privatrecht (1994), 57 ff. and Antonio Gambaro, ‘Abuse of Right in Civil Law Tradition", in Alfredo Mordechai Rabello (ed.), AciJinfflS and frptih/: Equity in Civil Law and Mixed Jurisdictions (1997), 632 ff. In view of the wide interpretation given to § 242 BGB, the rule does not have much practical significance ("largely redundant': Helmut Heinrichs, in Palandt, Bürgerliches Gesetzbuch (58th edn., 1999), §226n.

1).

¹³⁵ 'A person who wilfully causes damage to another in a manner contra bonus mores is bound to compensate the other for the damage.' For commentary in English, see Markesinis (n. 29) 894 ff.; cf. also supra p. 68.

’36 q-he debtor is bound to perform according to the requirements of good faith, ordinary usage being taken into consideration.'

¹³⁷ 'Contracts shall be interpreted according to the requirements of good faith, giving consideration to common usage.’

^13,1 See, e.g., Wendt, 'Die exceptio doli generalis im heutigen Recht oder Treu und Glauben im Recht der Schuld Verhältnisse’, (1906) 100 AcP 1 ff.; Paul Oert- mann, Das Recht der Sdttildverhaltnisse (vol. ii of a commentary to the German Civil Code edited by Biermann, von Blume, and others) (2nd edn., 1906), § 242, 4; and see the detailed references in Haferkamp (n. 123) sub IV. 1 (particularly n. 113).

approach which, it was feared,¹³⁹ might prevail under the new Code. When these fears turned out to have been unfounded, the critical voices gained ground again.¹¹⁰ Soon the discussion became overshadowed by the great methodological debates unleashed by the free law movement.¹⁴¹ The focus of attention now shifted to the application of § 242 RGB, the provision that had begun to emerge as the heir apparent of the exceptio doli generalis. Strong language was used. The good faith provision was seen, on the one hand, as 'the source of the baneful plague gnawing in a most sinister manner at the inner core of our legal culture';¹⁴² on the other hand, it was celebrated as the 'queen of rules'¹⁴³ which could be used to unhinge the established legal world.¹⁴⁴

(b) The Courts

And the courts? It is highly instructive to see how little they were perturbed, or affected, by these discussions, or indeed by the introduction of the Civil Code. The application of the principle of good faith and of the exceptio doli in German legal practice has remained constant, as Ranieri puts it very pointedly,¹⁴³ from the days of the usus modernus pandectarum to the case law of the Federal Supreme Court.

This is confirmed, for the period around the turn of the century, by another recent study.¹⁴⁶ From 1880 to 1914 there was a steady stream of decisions by the Imperial Court—carrying on, in this respect, the tradition established by the Imperial

^1W See, e.g., Jakobs and Schubert (n. 132) 1171.

¹⁴⁰ A good example is Konrad Schneider, Trett mid Glatdvn ntt Recht der Sdmld- tvrlni'ltnis$e, 19(12; and see the references in Haferkamp (n. 123) sub V.

¹⁴¹ For an overview of the various positions, see Wieacker (n. 5) 363 ff., 453 if.; Peter Raisch, Ittrislisdte Methode» (1996), 107 ff.

¹⁴² Rudolf Henle, Trett tittd Glatdvtt ini Rechtsverkehr (1912), 3.

¹^4? See the (critical) discussion by Justus Wilhelm Hedemann, Die Flncht in die Getteralklattseltt: Fine Gefiihr fiir Recht mid Stout (1933), 10 f.

¹⁴⁴ Generally on the application and theoretical perception of § 242 RGB, see (in English) Ebke and Steinhauer (n. 122) 171 ff.; Whittaker and Zimmermann (n. 122) 22 ff.

¹⁴⁵ 1998 R/DC 1081.

¹⁴⁶ Haferkamp (n. 123) sub ill. 1 and 2 (b), IV. 2 and VI.

Supreme Commercial Court (Reichsoberiiandelsgericht)™⁷— evaluating the conduct of the parties from the point of view of good faith and thus imposing an objective standard of honest, loyal, and considerate behaviour. This was done without much ado. Before the enactment of the Code, the Court regarded the existence of the except io doli generalis (for which it used a number of different terms, both Latin and German) as self-evident and it tended, at least at first, to avoid any sweeping statements but based its reasoning on the facts of the individual case.¹⁴⁸

In the 1890s, and obviously encouraged by the favourable mood towards the exceptio doli generalis, the Court became somewhat more adventurous and openly prescriptive in its process of reasoning.¹¹⁹ The first relevant decision under the BGB referred to the exceptio doli (Einrede dor Arglist) as if nothing had changed.¹⁵¹¹ Then the one or other provision of the Code came to be added in brackets.¹⁵¹ A little later the first attempt was made to demonstrate that the general principle had been retained by the BGB; no less than eight provisions of the Code were lined up to prove that proposition.¹⁵² From about 1909 onwards, the Court merely stated that the exceptio doli generalis was recognized and had been applied repeatedly.

'Merely'^1-’³ its doctrinal foundation remained disputed. The Court thus succeeded in maintaining a middle course: neither was it regarded as sufficient if the plaintiff merely acted inequitably nor was judicial intervention confined to the extreme case where the only purpose of exercising a right had been to cause damage to another. The exceptio doli generalis remained a malleable tool to mitigate the rigours of the law.

^M” On the importance of that Court (founded in 1869) for the process of unification of German law, see Herbert Kronke, 'Rechtsvergleichung und Rechtsverein- heitlichung in der Rechtsprechung des Reichsoberhandelsgerichts', (1997) 5 ZEuP 735 ff.

^,4S See the references provided by I laferkamp (n. 123) sub HI. 2 (b).

¹⁴⁹ Haferkamp (n. 123) sub IV. 2.

¹⁵⁰ RG, in Werner Schubert (ed.), Sammhtng sMnllicher Erkennlnisse des Reichs-

gcrichts (1992 ff.), 1902,47 n. 76. ¹⁵¹ See, e.g., RG, 1903 /IV 432.

¹⁵² RGZ 58, 425 (429). ¹⁵³ RGZ 71, 435.

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Source: Zimmermann R.. Roman law, Contemporary law, European law. Oxford University Press,2004. — 113 p.. 2004

Exceptio Doli Generalis[226]

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