Reference to the boni mores in modern law

What types of contracts do we disapprove of today sub voce boni mores?' Many of the decisions of the Roman lawyers would still accord with modern attitudes. Pacta de quota litis, for instance, are still regarded as contra bonos mores in countries such as Germany^[3621] and South Africa²⁶³ (but not in the United States);²⁶⁴ a contingent fee, it is argued, would undermine the objectivity and integrity of an advocate/ attorney, since it might lead him to confuse his own interest in a fair remuneration of his efforts with the interests of his client.²⁶⁵ Agreements involving family relationships, too, are in many cases still regarded as morally offensive.²⁶⁶ Artificial insemination, in vitro fertilization and the possibility of surrogate motherhood have, however, presented us with entirely new challenges to our established moral value judgements.

"The deceased may by contract appoint an heir and create legacies and testamentary burdens (inheritance contract). Both the other contracting party or a third party may be appointed as heir {contractual heir) or legatee."

Those rules were unthinkable in Roman law (and would, incidentally, not be approved of by a present-day South African court either).²⁶⁹ But the area where this shift of standards has occurred most patently is probably that of sexual morality and common decency.

"What was apparently [once] regarded with pious horror... would, I observe, today hardly draw a raised eyebrow or a gentle 'tut-tut'... George Bernard Shaw's Eliza Doolittle... thought the suggestion that she have a bath in private with her ^{[3622] [3623] [3624] [3625] [3626] [3627] [3628] [3629] [3630] [3631] [3632] [3633] [3634] [3635] [3636] clothes off was indecent.... One wonders what she would have thought and said to a suggestion that she wear in public one of today's miniscule and socially accepted bikinis, held miraculously in place apparently with the aid of providence, and, possibly, glue."27"}

In 1975, a German (county) court regarded a contract under which a hotel owner agreed to let a double room to an unmarried couple as morally offensive and therefore void.^{[3637] [3638] Almost certainly, a similar case would be decided differently today.[3639]}

More important, however, than sex is economic power, at least as far as § 138 BGB is concerned. The boni mores have been invoked increasingly in order to tackle the problem of unfair contract terms arising from an inequality of the bargaining power of the contracting parties. As early as the second half of the 19th century (that is, still under the pandectist version of the ius commune) agreements in restraint of trade were subjected to close scrutiny, and, if necessary, declared null and void as being contra bonos mores.^[3640] In § 138 II (i.e. under the auspices of the boni mores) the German legislator has taken up the fight against usury:^[3641] not in a particularly dashing manner, and hence the modern attempts to sidestep the (subjective) requirements of this rule and to invalidate contracts under the general clause of § 138 I in cases of an exceptionally obvious disproportion between perform­ance and counterperformance.^[3642] § 138 I BGB has been used to combat unfair standard-contract terms^[3643] and, even though the legislator has now intervened and attended to this specific problem area,^[3644] the general prohibition of contracts contra bonos mores continues to be a valuable tool in the hands of courts that are willing to protect the economically weaker party from exploitation.^[3645]