Freedom of contract and extra-legal standards

In all modern legal systems the freedom of the parties to determine the content of their transaction is limited not only by statutory prohibitions but also by certain extra-legal standards.²⁰⁵ If a contract is at variance with the sense of decency of all just and fair-thinking people,²⁰⁶ if it carries a visible stamp of eccentricity²⁰⁷ so as to scandalize the reasonable man, it cannot possibly be upheld.

In primitive communities, religion, law and morals are usually inextricably interwoven.²⁰⁸ The Ten Commandments, for instance, represent a motley collection of religious duties ("I am the Lord thy God: Thou shalt have none other Gods but me"), moral precepts ("Honour thy father and thy mother...") and legal rules ("Thou shalt not steal" ). The disentanglement of these ideas belongs to the later and

Flume, AT, § 17, 5; Ernst Kramer, in: Miinchtner Kommentar, vol. I (2nd cd., 1984), § 117, n. 15; Behrends, Fraus legis, pp. 9 sqq., Schurig, Festschrift Ferid, pp. 375 sqq., 398 sqq.; and especially Arndt Teichmann, Die Gesetzesumgehung (1962), passim. Contra (a special doctrine of fraus iegi facta outside the usual canons of interpretation is necessary) Mayer-Maly, op. cit., note 31, § 134, nn. 11 sqq.; cf. also, as far as Roman law is concerned, Honsell, Festschrift Kaser, pp. 122 sqq.; Behrends, Fraus legis, pp. 15 sq.

The more modem history has recently been analysed by Jan Schroder, Gesetzesaitslegung and Gesetzesumgehung (1985), pp. 15 sqq. He demonstrates how closely, historically, the problem of fraus Iegi facta and the approach to the interpretation of statutes are interrelated. Until about the middle of the 19th century, a very restrictive view prevailed as to the question of statute interpretation; thejudge was taken to be bound strictly to the words of the law (he was, in the words of Montesquieu, "!a bouchc de la hi"). As a result, recognition of a specific doctrine of fraus legis became necessary (unless one was still prepared to deal with the problem s.v. simulatio, cf. supra, pp. 648 sqq.). The change occurred in the course of the second half of the 19th century (Schroder, pp. 32 sqq.): recognition of the so-called "objective" theory of statutory interpretation made the doctrine of fraus legis redundant. The background for this change of approach is analysed in detail by Schroder, pp. 48 sqq.

For a modem comparative analysis, see Schurig, Festschrift Ferid, pp. 379 sqq. (Germany, Austria, Switzerland), pp. 387 sqq. (France) and pp. 392 sqq. (England—where, interestingly, the doctrine "is completely rejected, and life, none the less, goes on").

²¹¹⁵ For a comparative overview, see Zweigcrt/Kotz, pp. 72 sqq.; for South African law Joubert, Contract, pp. 132 sqq.

çîâ j_n^A_s -_s ^ë p_revaiijng definition of the boni mores since the days of RGZ 48, 114 (124); 55, 367 (373); 79, 415 (418) (cf. also "Motive", in: Mugdan, vol. U, p. 406) in German law. For details see Helmut Haberstumpf, Die Formel votn Anstandsgefuhl aller billig und gerecht Denkenden in der Rechtsprechung des Bundesgerichtshofs (1976); cf. also Mayer-Maly, op. cit., note 31, § 138. nn. 12 sq.

²¹¹⁷ Cf. John P. Dawson, "Unconscionable Coercion; The German Version", (1976) 89 Harvard LR 1063.

Cf. e.g. Alfred Lord Denning, The Changing Law (1953), pp. 99 sqq. more refined stages of mental progress. It is a sign of the specific legal genius of the Romans that they achieved this severance at a very early stage.^[3579] Supervision and enforcement of the public morals was entrusted to the censor^[3580] and thus separated from the civil (legal) jurisdiction, for which a different magistrate, the praetor, was responsible. By about the 1st century A.D., however, the specific censorial cura morum had lost its significance; from this time on the emperors felt responsible to see to it that the customary precepts of good and honest behaviour were respected and adhered to.

2.