The effects of immorality

It is obvious that pacta contra bonos mores were invalid. The same applied to contracts with iudicia bonae fidei; what is against the boni mores cannot be claimed ex bona fide: "Generaliter observari convenit bonae fidei iudicium non recipere praestationem, quae contra bonos mores desideretur.

^1,233 Stipulations, too, were ipso hire null and void, if the immorality was apparent from the wording of the formal promise. "Quod turpi ex causa promissum est, veluti si quis homicidium vel sacrilegium se facturum promittat, non valet",^[3604] provided, we must add, that the stipulation was causally drafted.^[3605] The situation was different where the stipulation was based on an immoral causa but had been framed abstractly, so that the content of the promise as such was not objectionable. Here the praetor had to come to the promisor's rescue, which he usually did by way of granting the exceptio doli. This is what happened, most probably, in a cause celebre concerning the orator Gaius Visellius Varro, a cousin of Cicero.^[3606] Dangerously ill and expecting to die, Visellius had decided to leave a sum of 300 000 sesterces to his lover,^[3607] a woman by the name of Otacilia Laterensis. To effect this gift, he chose the form not of a will but of an (abstractly drafted) stipulation. "Trecenta milia sestertium te mihi dari oportere?" was what Otacilia was invited to ask, and Visellius replied with "Spondeo". That the sum was intended to be a donatio mortis causa in disguise and that it was based on a morally objectionable causa was not apparent from these words. When, to Otacilia's chagrin, Visellius recovered, she sued him for the money.

Gaius Aquilius Gallus dismissed the claim, and as a "vir magnae auctoritatis et scientia iuris civilis excellens",²³⁸ furthermore as father of the remedies concerning dolus²³⁹ he could hardly have done so, had the programme of litigation not empowered him, by virtue of an exceptio doli, to go into the somewhat sordid background of the case.²⁴⁰ It has even been suggested that this was the first time the new "neque fiat" clause was applied in practice.²⁴¹ Alternatively, it is perhaps not unthinkable that this was such a famous case (we hear that the principes civitatis were consulted in the matter) that it in turn inspired the introduction of either the exceptio doli or the "neque fiat" clause.²⁴².

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

The effects of immorality

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