The boni mores and the ins commune
The writers of the ius commune largely contented themselves with referring to and commenting on the individual examples of transactions contra bonos mores contained in the Corpus Juris Civilis.251 Occasionally, however, a different evaluation gained ground.
Most notably perhaps, pacta successoria came to be recognized as being based on Germanic customary law: "Sic in Germania hodie per mores vulgatum est, ut non attenta amplius ea juris civilis veteri constitutione pacta successoria valeant."252 Conditions in Rome were painted in a dark and sombre light in order to justify this deviation from the sources:"Summa nempe erat hac in parte Romanorum improbitas, ut illi, cui se successuros certa sciebant, non solum mortem optarent, sed et ferro, veneno aliisque artibus spem suam promoverent... Solebant securius alimenta aut medicamenta aegrotantibus denegare. "253
Such insidious contrivances were, of course, entirely alien to the pure and honest German soul. Even pacta de hereditate tertii were no longer frowned upon as "odiosae... et plenae tristissimi et periculosi eventus".25 On the other hand, new problem areas emerged, requiring moral value judgements. In the wake of the Reformation, for instance, heirs of legataries were frequently appointed under the condition of accepting the new or remaining faithful to the old religion. Predominantly, such clauses were regarded as unacceptable and therefore void: [3608] [3609] [3610] [3611] [3612] [3613] "[T]urpe est, et contra consdentiam agit, qui spe lucri mutat religionem, quam veram esse sdt, et scire debet."[3614] Few authors, however, ventured beyond the mere casuistry. One of the first to adopt a more generalized approach was Hugo Donellus. "De verbintenissen zijn niet alleen nietig daer door belooft werd een unmoghelicke zaeck.. maer oock daer by iet belooft werd dat nae de burger-wet ende zeden oneerlick werd ghehouden."[3616]" During the 18th and 19th centuries the general rule that all contracts (or even: all legal transactions) contra bonos mores are void established itself firmly. It impressed the fathers of the French code civil,[3617] [3618] was taken over by the pandectists25y and ultimately became part of the BGB.[3619] [3620] Here it serves a crucial function as one of the few devices limiting the freedom of the parties to a contract to determine the contents of their transaction. 7.
More on the topic The boni mores and the ins commune:
- The content of the boni mores
- References to the boni mores in classical law
- Reference to the boni mores in modern law
- The position under the ins commune
- The distinctions of the ins commune
- Breach of contract under the ins commune
- The notion of impossibility under the ins commune
- Actio empti and aedilitian remedies in the ins commune
- Conditions contra bonos mores and late classical jurisprudence
- 1. Legal theory and mores hodiernae
- 1. The older ius commune
- The regime of the ius commune: all or nothing
- Requirements of mora debitoris (ius commune)
- lus Commune