The content of the boni mores
Ultimately, then, the crucial question: what were the boni mores? No definition is contained in our sources. We have referred to Papinian's interest in attempting to grasp the importance of the boni mores for legal transactions, and it was he who probably came closest to revealing what the Roman lawyers meant when they used this general phrase.
Contra bonos mores, he wrote, are acts which offend "pietatem existimationem verecundiam nostram".243 The sense of duty and the natural affection towards gods, parents or near relatives, the respect or esteem enjoyed by a person in society and the innate sense of shame: these are the types of values which had from ancient times held together the community at large, and which in their entirety constituted the unquestioned and self-evident core of the boni mores.244 A more detailed idea of what this entailed can be obtained only by an analysis of the casuistry contained in our sources.245 Recourse to the boni mores was had, particularly frequently, where the moral integrity of family life in the widest sense was threatened: hence the invalidity of agreements pressurizing somebody (albeit indirectly) to enter into, not to enter into, to dissolve or not to dissolve a marriage,246 hence also, forValerius Maximus, loc. cit.
29 Cicero, De qfficiis, 3, XIV-60; cf. also supra, pp. 663 sq. (note 99). Whether Aquilius was the father not only of the actio de dolo but also of the exceptio doli is not certain.
20 Cf. also the similar case, decided on the basis of an exceptio doli in lul./Lab./Ulp. D. 44, 4, 4, 1; on which see, most recently, Geoffrey MacCormack, "Dolus in the Law of the Early Classical Period (Labeo-Celsus)", (1986) 52 SDH! 247 sq.
24 Von Lubtow, Eranion Maridakis, p. 201.
22 Cf.
Kaser, Verbotss>esetze, pp. 85 sq.28 Pap. D. 28, 7, 15.'
24 Cf. e.g. Kaser, (1940) 60 ZSS 103; Mayer-Maly, Festgabe Kaser, p. 156; Plescia, (1987) 34 RIDA 275 sqq. The earliest references to the boni mores contained in authoritative texts can be found in three edicts on iniuria (Lenel, EP, pp. 400 sq.); they serve to delineate the still acceptable from the unacceptable behaviour. Already at this stage (i.e. before the time of Labeo) fairly precise ideas must have existed as to what the boni mores comprised. For details, see Mayer-Maly, Festgabe Kaser, pp. 157 sqq.; idem, (1987) 590 THRHR 64 sqq.
25 Cf.. in particular. Kaser. (19401 60 ZSS 120 sqq.; cf. also Plescia. (19871 34 RIDA 286 sqq.
Kaser, (1940) 60 ZSS 121 sqq. On testamentary divorce clauses, see Meincke, Festschrift Kaser, pp. 437 sqq.
instance, the invalidity of stipulations de successione futura247 or of arrangements in anticipation of somebody else's death.248 But even outside this broadly defined area, the boni mores were occasionally invoked in order to limit the freedom of contract. Thus, for instance, the exclusion of liability for dolus was disapproved of as being contrary to the good morals,249 and so was an undertaking between a plaintiff and his procedural representative that the latter was to be remunerated for his efforts by way of a share in the sum to be obtained through the defendant's condemnation.250
6.
More on the topic The content of the boni mores:
- References to the boni mores in classical law
- Reference to the boni mores in modern law
- The boni mores and the ins commune
- Conditions contra bonos mores and late classical jurisprudence
- 1. Legal theory and mores hodiernae
- The content of justice
- CONTENT
- CONTENT
- Content
- Content and Classification of Contracts
- The Content of the Quasi Categories
- I. ORIGIN AND CONTENT OF THE LEX AQUILIA
- We have thus far been discussing the content and creation of contractual obligations.
- Corresponding to the three elements of the concept of law the elements of social efficacy, correctness of content, and authoritative issuance—are three concepts of validity: the sociological, the ethical, and the juridical.
- A concept of legal validity that leaves out the elements of social efficacy and correctness of content was classified above as a concept of legal validity in a narrower sense.
- The effects of immorality
- The essential elements of iniuria
- 1. The different forms of iniuria