References to the boni mores in classical law
It is in line with these general observations that only in a few types of situation did the Roman lawyers have recourse to the standard of the boni mores.[3581] One of these was the limitation of the freedom of legal transactions.
But our sources do not take us back beyond the 2nd century A.D. Two texts by Gaius and by Julianus are our earliest testimonies to the consequences of an infringement of the boni mores by the contracting parties. "Illud constat", asserts Gaius,[3582] "si quis de ea re mandet quae contra bonos mores est, non contrahi obligationem, veluti si tibi mandem ut Titio furtum aut iniuriam facias": no obligation is created if a morally objectionable mandate is given. Two examples are provided: the mandator charges the mandatarius with stealing something from Titius or with insulting him. We are dealing with a transaction involving a prohibited kind of behaviour. Theft and iniuria were strongly disapproved of: so much so that conviction entailed infamia.[3583] But, of course, they were general forms of delict, not specific statutory prohibitions of the kind discussed above. Transactions referring to the commission (or omission) of such a delict or of criminal offences (such as homicidium, sacrilegium, stuprum, adulte- rium or lenocinium)[3584] could therefore not be evaluated from the point of view of the lex perfecta/minus quam perfecta/imperfecta scheme, but had to be invalidated under different auspices: hence the reference to the boni mores. Such transactions, although not specifically prohibited, were turpis and could therefore not be tolerated by the legal system.[3585] [3586] This, of course, applied not only to mandates but to the other types of contract too. As far as stipulations were concerned, we find a clear statement to that effect in D. 45, 1, 26 and 27 pr.:"Generaliter novimus turpes stipulationes nullius esse momenti: veluti si quis homicidium vel sacrilegium sc facturum promittat."21fl
A stipulation, quite openly obliging somebody to commit a murder, or to steal an object used for divine service: these must have been mere textbook examples. Of greater practical relevance was the type of situation dealt with by lulianus:
"Stipulatio hoc modo concepta: 'si heredem me non feceris, tantum dare spondes?' inutilis est, quia contra bonos mores est haec stipulatio."[3587]
Ambulatoria est voluntas defuncti usque ad vitae supremum exitum:[3588] up until the last moment of his life a testator has to be perfectly free to make up his mind as to his dispositions mortis causa, and every kind of commitment undertaken by the testator during his lifetime to dispose of his property in a specific way was therefore frowned upon. Hence the impropriety of the promise of a penalty for failing to institute a particular person as heir. The stipulation was invalid, and the unwritten standards of evaluation leading to this result were again summed up in the words "contra bonos mores".[3589] It should be noted, incidentally, that the whole stipulation was regarded as invalid, not only its objectionable part. Strictly speaking, the infringement of the mos maiorum was confined to the condition ("si heredem me non feceris"); a promise of "tantum dare spondes" as such would have been quite in order. Utile per inutile non vitiatur? According to that rule, one could have been tempted to uphold the promise unconditionally. But we have already seen that the Roman lawyers did not subscribe to such a mechanical "blue pencil" approach.[3590] [3591] [3592] The condition forms the basis upon which the remainder of the transaction depends. The promisor never contemplated paying, and the stipulator could never reasonably expect to receive, a sum of money straightaway. As a rule, it was therefore recognized that where a condition was invalid, the contingent part of the transaction fell away too. An exception was, however, made in cases of testamentary dispositions:
"... legatum sub impossibili [and, we may add: turpi] condicione relictum... proinde deberi... ac si sine condicione relictum esset."321
It was based on the favor testamenti. ”
3.
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