Excursus: utile per inutile non vitiatur

(a) Partial invalidity in Roman law

It is convenient, at this point, to pause for a little while and to consider the concluding phrase of Ulp. D. 45, 1, 1, 5: "neque vitiatur utilis per hanc inutilem." Innocuous and insignificant as it might look, this little sentence certainly made history.

It addresses the question whether the one stipulation ("Pamphilum dari spondes?"—"Spondeo"), in itself valid, might not have to be regarded as invalid because the other one (to which there is only the answer: "Stichum dari spondeo") is invalid. Both stipulations, as will be remembered, were not only part and parcel of a single transaction, but had in actual fact been drawn together in one single act. Thus, one could have argued that invalidity of part of the act leads to invalidity of the whole transaction. This, however, is not the answer given by Ulpianus. The valid stipulation, in his view, remains unaffected by the invalidity of part of the transaction. One must be cautious not to take this (as was indeed done in later ages) as the basis for a hard-and-fast rule governing the question of partial invalidity of a legal transaction; Ulpian's comment relates to this one specific case only ("hanc inutilem"). While, therefore, it would not be true to say that the whole idea of partial invalidity is of post-classical origin,^[412] it would be equally incorrect to assume that the classical lawyers had pinpointed the problem of partial invalidity as such and subjected the various cases to a general rule. Rather, they tackled the cases as they arose, adapting the result and reasoning to the individual circumstances.^[413] No abstraction was attempted. We do, however, find a tendency to uphold the transaction without its invalid part, wherever possible. The Digest preserves a variety of examples: a piece of land has been sold, but it transpires that the parties failed to reach agreement with regard to a slave who was to be transferred as part of the accessories;^[414] a clause has been added in a contract of loan for use exempting the borrower from liability for dolus;^[415] the name of one of the heirs in a will has been struck out;^[416] a promise has been given, by way of stipulatio, to pay a certain sum to the stipulator and to a third party.^[417] In all these cases, the invalidity of part of the transaction, either explicitly or implicitly, was held not to affect the whole transaction.^[418] Where, on the other hand, partial invalidity would clash with overriding policy considerations (as, for instance, that the parties strike their bargain themselves and that arbitrary—judicial—intervention into the terms of the transaction be avoided), thejurists did not hesitate to opt for total invalidity.^[419]

(b) Generalization ofUlp.

D. 45, 1, i, 5

From the Middle Ages onwards, however, lawyers latched on to D. 45, 1,1,5 and generalized Ulpian's phrase at the end ofthat fragment. The rule of "utile per inutile non vitiatur" became part of the ius commune and dominated the discussion of partial invalidity^[420] from the time of the gloss^[421] down to the pandectists.^[422] Taken as a general rule, however, and not only as a guideline or presumption, it is apparent that "utile per inutile non vitiatur" inevitably leads to many unsatisfactory results, for instance in cases where the invalid part constitutes a major component of the transaction.

Attempts were not wanting to water down the rule in order to achieve greater flexibility. Thus, on the basis of Paul. D. 50, 17, 129, 1 ("Cum principalis causa non consistit, ne ea quidem quae sequuntur locum habent") and Paul. D. 50, 17, 178 ("Cum principalis causa non consistat, plerumque ne ea quidem quae sequuntur locum habent") attempts were made to establish some sort of counter-rule.^[423] ^{^[424] In particular, however, the intention of the parties to the transaction came to be emphasized;⁵⁴ and it is this recourse to the fundamental freedom of the individuals to regulate their own affairs that influenced the modern codifications.^[425] Utile per inutile non vitiatur was therefore reduced to a presumption operating only where it cannot be ascertained what the parties had envisaged, in the event of part of their transaction turning out to be invalid.^[426] Some codifications, amongst them the BGB, moved even further away from Roman law and reversed the presumption:^[427] utile per inutile vitiatur, unless it may be assumed, in the words of the BGB, "that [the transaction] would have been entered into even if the void part had been omitted".^[428] But in most cases it is very difficult, if not impossible, to determine what the parties would have done had they known that part of their transaction was invalid: parties normally do not consider this eventuality at the time of entering into the contract. Thus, the real will of the parties is usually replaced by an enquiry into their "hypothetical will",^[429] i.e.}

by an evaluation of interests according to the standard of the reasonable man. But that, in the final analysis, makes the subsidiary presumption (be it utile per inutile non vitiatur or utile per inutile vitiatur) rather superfluous. Under the guise of the hypothetical will, the courts have thus acquired, once again, the far-reaching discretion of the Roman jurists to find suitable solutions to each individual case in which the question of partial invalidity arises.^[430] As a result, the above-mentioned rules of the European codifications have been characterized as relics from past epochs, which attempted, on the basis of a misconceived Roman tradition, to lay down and settle the consequences of partial invalidity in a general legal rule.^[431]

Surprisingly, in South African law, neither utile per inutile non vitiatur nor the Roman sources seem to have influenced the discussion. Instead, the courts have received English law in this regard.^[432] There the question has always been whether the unobjectionable parts of a contract may be enforced and the objectionable disregarded as "severed". As far as such severance is concerned, the courts seem to have been guided by two basic principles,⁶³ namely that the courts must not make a new contract for the parties and that they will sever the unenforceable parts of a contract only if it is in accordance with public policy to do so.⁶⁴ As far as the first of these principles is concerned, English courts have employed the "blue-pencil test": severance will only be effected if the illegal part can be crossed out by running a "blue pencil" through it (that is, where the courts do not have to rewrite the existing contract).⁶⁵ Such a guideline would also be of use in German law where the courts display an increasing tendency to reduce exorbitant terms of a contract to an acceptable level instead of declaring the contract null and void.⁶⁶ One of the policy considerations militating against such a tendency has been spelt out—with regard to the practically very important employer and employee covenants in restraint of trade—in the following terms:

"It would in ray opinion be pessimi exempli if, when an employer had exacted a covenant deliberately framed in unreasonably wide terms, the courts were to come to his assistance and, by applying their ingenuity and knowledge of the law, carve out of this void covenant the maximum of what he might validly have required. It must be remembered that the real sanction at the back of these covenants is the terror and expense of litigation, in which the servant is usually at a great disadvantage, in view of the longer purse of his master."¹¹⁷

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

Excursus: utile per inutile non vitiatur

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