1. Terminological and conceptual problems

(a) The black cat which was not there

On 21 January 1942 in the Transvaal town of Germiston a certain Miss Van der Westhuizen married her lover, Mr Engelbrecht. Miss Van der Westhuizen was a minor and the marriage took place against the express prohibition of her parents; the marriage officer had been induced to believe that the bride was in fact of age.

When Mr Van der Westhuizen sen. became aware of these facts, he promptly instituted an action against the couple (who had, in the meantime, broken off all relations with each other) to have the marriage declared null and void. Since a similar case had never been decided by a South African court, Mr Justice F.P. van den Heever took the opportunity to reflect on the meaning of the term "invalidity" in the old authorities.¹ Voet, he found, distinguished between juristic acts which are ipso iure null and void as opposed to those which require a declaration of nullity.² But then, virtually in the same breath, he recognized an almost universal practice, dictated by caution,³ of obtaining judicial restitution, even with regard to juristic acts "quae vere nulla sum". The words "ipso iure" (null and void) here, as in many other discussions on the topic, seem to be without any relevance; they are "thrown in for good measure and, apparently, for their sound".⁴ After a lengthy historical exposition, Van den Heever J was driven to the conclusion that, in dealing with nullity ipso iure and seeking to attribute substantive significance to the distinction between the voidability and nullity of legal acts, the commentators of the ius commune "were like blind men looking in a dark room for a black cat which wasn't there".⁵

Van der Westhuizen k. Engelbrecht and Spouse and Engelbrecht v. Engelbrecht 1942 OPD 191 at 195 sqq.

² Commentarius ad Pandectas, Lib. I, Tit. II, XVI.

³ "Unde et quia nonnumquam ipso inter juris interpretes controversum est, an ipso jure quid nullum sit, an vero per judicem rescindendum, usu hodierno passim fere in tribunalibus obtinuit, ut et adversus ea, quae vere nulla sunt, majoris securitatis ergo, restitutio impetretur, eaque mediante rescindatur quod actum gestum contractumve fuit."

⁴ Vm der Westhuizen v. Engelbrecht and Spouse & Engelbrecht v. Engelbrecht 1942 OPD 191 at 196.

^s At 199.

678

In fact, our discussion, in the previous two chapters, of the effects of mistake, duress and fraud on contracts, has already demonstrated^[3426] that Van den Heever's analysis is not far off the mark. Whether and under which circumstances a contract affected by these "vices of consent" was void, voidable, liable to be rescinded, relatively invalid, etc. has never been entirely clear. Additional difficulties arose from the fact that no generally accepted, uniform terminology was employed by the various authors of the ius commune;^[3427] what was referred to as "rescissio" by the one was termed "resolution et nullite" by another.^[3428] Only comparatively few of them stuck to clear-cut distinctions such as the ones proposed by Blasius Altimarius:^[3429] namely that there are contracts which are ipso facto nulli, others which have to be declared null and void by a court of law (such a declaration having ex tune effect) and those which may be rescinded ex nunc.

(b) "Invalidity" according to the ins civile

The source of this confusion was, of course, the Roman law. There were two chief difficulties that systematically minded lawyers, who wanted to remain faithful to the sources, had to battle with. For, on the one hand, legal transactions could be "invalid", in classical Roman law, according to the ius civile.

About 30 different terms survive in our sources to describe that result: nullum, nullius momenti, non esse, invalidum, nihil agere, inutile, inane, irritum, imperfectum, and vitiosum feature particularly prominently.^[3430] To bring them into any kind of systematic order would be an absolutely hopeless task. The Roman lawyers were mainly interested in whether an action was available in a given situation or not; they did not pay too much attention to a neat analysis of why an action could not be granted under certain circumstances and what further ramifications that entailed.^[3431] Thus, for instance, it was perfectly possible for them to declare the sale of a res religiosa to be invalid ("nullum esse emptionem")^[3432] and yet at the same time to make the actio empti available to the disappointed "purchaser" for "quod interfuit eius ne deciperetur".^[3433] Irritating for the modern lawyer is also the fact that no clear distinction was drawn between those cases where a valid contract had not come into existence (because of the lack of one of its requirements)¹⁴ and where a transaction had in fact been concluded but was unenforceable "hire civili" because its content was, in some or other way, objectionable.¹⁵ All that one may perhaps say by way of generalization is that the label "invalidity" usually implied that a transaction was denied its natural (or typical) consequences.¹⁶ As a rule, this type of "civilian" invalidity could be invoked by anybody and at any time. But there were exceptions; the querela inofficiosi testamenti was probably the most important one. This was the complaint by a person, who would have been an intestate heir, but who was omitted or disinherited in the testator's will.¹⁷ Even though such a will was contra officium pietatis and thus objectionable, it was valid until it had been declared null and void by the court with which the querela had been lodged. In this instance it was up to the aggrieved party, therefore, to decide whether to void the transaction or not.

In this respect it resembles the modern concept of voidability (rescindability) of transactions.¹⁸

Secondly, however, account must be taken of that other layer of legal rules of which classical Roman law was made up: the ius honorarium, developed by the praetors over the centuries and eventually revised and codified under Emperor Hadrian.¹⁴ A variety of transactions, valid according to the civil law, were effectively invalidated by the praetor, in that he either refused to grant an action (denegatio actionis) or authorized the insertion of an exceptio into the procedural formula.²⁰ Alternatively, he ordered restitutio in integrum by granting remedies such as the actio quod metus causa, the actio de dolo or specific iudicia rescissoria.²¹ This kind of reinstatement into the former legal position also effectively resulted in the annulment of a legal transaction, which was valid according to the ius civile. Again, the Roman lawyers were unconcerned about dogmatic niceties: was the transaction void or voidable and, if the latter, did thejudicial or praetorian pronouncement have its rescissory effect ex tune or merely ex nunc?²²

(d) Classical and Justinianic law

To disentangle "civilian" and "praetorian" "invalidity" as such would

⁴ Usually, however, the term "impcrf ectum" appears to have been used in this context. ^ls On this distinction, see. most recently. C.F.C. van der Walt. (1986") 103 SALJ 650. ^Ifl Kaser. RPr I. p. 247.

¹⁷ Cf. generally Kaser. RPr I. pp. 709 sqq.; idem. RPr II. pp. 601 sq.

^1K Honsell/Mayer-Maly/Selb. p. 115.

^B Cf. generally Max Kaser. '"Ius honorarium' und 'ius civile'". (19841 101 ZSS 1 sqq.

² Kaser. RPr I. p. 248.

³ Cf. supra, pp. 655 sqq.. 662 sqq.

^_ Cf. Max Kaser. "Zur in integrum restitutio, besonders wegen metus und dolus".

(19771 94 ZSS 107 sq. have been enough of a challenge for future generations of lawyers, to whom the contrast between ius civile and ius honorarium no longer mattered. Their task, however, was further complicated by the fact that terms such as "actio", "exceptio" and "in integrum restitutio" changed their meaning in post-classical times.^{^[3434]} This was the inevitable consequence of the amalgamation of ius honorarium and ius civile and of the replacement of the formulary procedure of classical law by the imperial cognitio extra ordinem. Thus, for instance, the distinction between invalidity ipso iure and per exceptionem had lost any procedural significance and was consequently disregarded. Justinian, on the one hand (as usual), attempted to preserve the rules and concepts of classical substantive law; yet, on the other hand, he could not, of course, revive the procedural framework within which these rules had once been developed. This was bound to introduce an additional element of inconsistency into our sources. While, therefore, the term "exceptio" continued to be used, it had lost its characteristic classical contours. Justinian himself occasionally referred to invalidity where classical lawyers would have granted an exceptio, and as a result the difference between void and voidable was largely lost.^{^[3435]} ^{^[3436]}

(e) Pandectist doctrine

Only 19th-century ^pandectism eventually managed to establish some conceptual clarity.²³ Invalidity ("Ungiiltigkeit") came to be accepted as the general, overall term, comprising (inter alia) ipso iure nullity ("Nichtigkeit") and various forms of annulment of a legal act, either by a court of law or by the aggrieved party and, in the latter instance, either by raising an exceptio or by way of a declaration of rescission ("Anfechtung")ri^[3437] Within the BGB, the concept of rescission was linked to that of nullity, in that the effect of rescission was described in the following way: "If a legal transaction, which is liable to be rescinded, is rescinded, it is deemed to have been null and void from the outset"^[3438] (the ex tune effect of the declaration of rescission).

"Null and void" was interpreted, throughout the 19th century, in a quasi-naturalistic manner as absolutely and in every respect ineffective.^[3439] Today there is a tendency to try to regain a greater degree of flexibility and to escape the dogmatic and conceptual rigidity of the BGB.²⁹ Thus, for instance, it has been argued that under certain circumstances a transaction should not be regarded as absolutely void but only as relatively so: void against the one party but not against the other.³⁰ Even more notable has been the trend, in recent years, to restrict the invalidity of usurious transactions. Where a contract is contra bonos mores (and thus, according to § 138 BGB, "null and void") on account of an obvious disproportion between performance and counterperformance, courts have occasionally cut down the imbalance and upheld the contract in an acceptable, modified form.³¹ This kind of judicial interference in, and reshaping of, contractual relationships occurs, to my mind, contra legem; nor is it necessitated by valid policy considerations.³²

<< | >>

↑

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

1. Terminological and conceptual problems

More on the topic 1. Terminological and conceptual problems: