Учебный год 22-23 / The Law of Obligations

eum pro quo profertur is therefore often tantamount to interpretatio contra creditorem.126 Here one can see how the ambiguity rule may be used in order to protect the position of the one who is perceived to be the weaker party to a contract. It is precisely this function that commended it to modern courts and writers who were desperately looking for devices to combat unfair standard contract terms. Standard contract terms are preformulated by one party and that party does not usually have the interests of his contractual partner at heart. The latter, particularly if he happens to be the ultimate consumer, lacks the economic power to insist on alterations, so as to achieve a fair balance of risk and interest. Individual negotiation is replaced by virtual imposition of a uniform and usually one-sided set of conditions, pushing aside the rules of the ius dispositivum.127 It was soon discovered128 that private autonomy no longer functions under these circumstances, for even according to "classical" contract theory only a fair bargaining process can be relied upon to produce a fair result. Thus the courts had to step in, but the code had poorly equipped them for this novel task.129 It is not surprising, therefore, that they fell back upon the venerable contra proferentem rule,130 particularly since that allowed them to achieve a reasonable solution without openly attacking the "idol" of freedom of contract.131

126 "In dubio fit interpretatio contra creditorem": Bartolus, Commentaria, D. 45, 1, 38, 18. Cf. also Pothier, Traite des obligations, n. 97; art. 1162 code civil ("Dans le doute, la convention s'interprete centre celui qui a stipule et en faveur de celui qui a comrade Vobligation") and the criticism by Zwcigert/Kotz/Weir, p. 73 (". . . is clearly based on the popular fallacy that the

creditor is rich and the debtor is poor").

127 Cf. e.g. Frank J i n Siegetman v. Cunard White Star Ltd (1955) 221 F 2d 189 at 205-6 (as quoted by Sandrock, (1978) 26 American Journal of Comparative Law 552): "An ordinary contract has been called a sort of private statute, mutually made by the parties and governing their relations. But in a lake-it-or-leave-it contract, absent actual freedom of contract, the parties do not 'legislate' by mutual agreement; the dominant party 'legislates' for both." For a general overview of the problems involved cf. Eike von Hippci, Verbraucherschutz (3rd ed., 1986), pp. 118 sqq.; Hein Kotz, "Welche gesetzgeberischen Massnahmen empfehlen sich zum Schutze der Endverbraucher gegenuber Allgememen Geschaftsbedingungen und Formularvertragen", in: Verhandlungen des 50. Deutschen Juristentages (1974), Gutachten A; Th. Bourgoignie (ed.), Unfair Terms in Consumer Contracts (1983); Hein Kotz, "Controlling Unfair Contract Terms: Options for Legislative Reform", (1986) 103 SALJ 405 sqq.

I 2 H Cf. in particular the by now classic work of Ludwig Raiser, Das Recht der allgemeinen Geschaftsbedingungen (1935).

129 On the control of unfair standard contract terms by means of §§ 138, 242 and/or 315 BGB, cf. e.g. RGZ 62, 264 (266); RGZ 103, 82 (83 sq. ); BGHZ 22, 90 (97 sqq.); BGHZ 38, 183 (186); BGHZ 41, 151 (155); BGHZ 54, 106 (109) and Wilhelm Weber, Die Allgemeinen Geschaftsbedingungen, Eine rechtliche Gesamtdarstellunq (1967). pp. 364 sqq.

130Cf. e.g.'RGZ 116, 274 (276); BGHZ 5, 111 (И5); BGHZ 47, 207 (216); Raiser, op. cit., note 128, pp. 264 sqq.

131"[Judges] still had before them the idol 'freedom of contract'. They still knelt down and worshipped it, but they concealed under their cloaks a secret weapon. They used it to stab the idol in the back. This weapon was called the 'true construction of the contract' ": Lord Denning, in George Mitchell (Chesterhall) Ltd. v. Finney Locky Seeds Ltd. [1983] 1 All ER 108 (CA) at 113J.

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But there are grave disadvantages in using rules of interpretation as a means of policing the substantive justice of standard contract terms.132 More direct forms of intervention had to be devised, albeit extra or even contra legem. In 1977 the German Standard Terms Act133 came into force and, even though it empowered the courts to strike down unfair standard contract terms,134 the ambiguity rule was retained. § 5 ABGB represents its most modern statutory version:135 "Uncertainty concerning the interpretation of standard contract terms shall be resolved against the proponent." Modern commentators usually stress

that great restraint should be observed in the application of this rule.136'137

uz Cf. e.g. Robert Fischer, (1963) 125 ZHR 205 sqq. and, more generally, Karl Llewellyn, (1938-39) 52 Harvard LR 703 (also referred to by Kotz, ((1986) 103 SALJ 407): "First, since they all rest on the admission that the clauses in question are permissible in purpose and content, they invite the draftsman to recur to the attack. Give him time, and he will make the grade. Second, since they do not face the issue, they fail to accumulate either experience or authority in the needed direction: that of making out for any given type of transaction what the minimum decencies arc which a court will insist upon as essential to an enforceable bargain of a given type, or as being inherent in a bargain of that type. Third, since they purport to construe, and do not really construe, nor are intended to, but are instead tools of intentional and creative misconstruction, they seriously embarrass later efforts at true construction, later efforts to get at the true meaning of those wholly legitimate contracts and clauses which call for their meaning to be got at instead of avoided. The net effect is unnecessary confusion and unpredictability. . . . Covert tools are never reliable tools."

133 Gesetz гиг Regelung des Rechts der Allgemeinen Geschaftsbedingungen (ABGB). On this

Act cf. e.g. Otto Sandrock, "The Standard Terms Act 1976 of West'Germany", (1978) 26

American Journal ofComparative Law 551 sqq.;N. Reich/K.-W. Micklitz, Consumer Legislation in the Federal Republic of Germany (1981), pp. 269 sqq.; H.R. Hahlo, "Unfair Contract Terms in Civil Law Systems'', (1981) 98 SALJ 70 sqq.

134§§ 9 sqq. ABGB.

135Others can be found in §§ 266 sq. 1 5 PrALR; art. 1162 code civil (cf. also art. 1602 II, relating particularly to the contract of sale); § 915 ABGB. For details, see Troje, (1961) 27 SDHI 107 sqq.; Krampe, op. cit., note 114, pp. 15 sqq. The fathers of the BGB did not adopt the contra proferentem rule: "Motive", in: Mugdan, vol. I, pp. 437 sq. The contra profercntem rule has also made its way into the English common law; it is already documented in 15th-century case reports. By and large today, the rule still plays a greater role in England than on the Continent; it is used here as a formalized and schematic way of

reliance protection. For details, see Liideritz, op. cit., note 2, pp. 247 sqq.

13(1 Сf. e.g. Ulmer/Brandner/Hensen, ABG-Gesetz (5th ed., 1987), § 5, nn. 1, 31.

Admonitions of this kind run like a red thread through the history of the ambiguity rule. Many authors have stressed that it can be reverted to only as an ultima ratio and that it must not be allowed to subvert or replace a thorough examination of "id quod actum est". Cf. e.g. Antonius Faber (". . . non statim faciendam esse interpretationem contra venditorcm aut locatorem, sed ita demum, si nihil sit quod melius dici possit . . .") and Donellus (". . .

si ita quaeritur, ut nullis coniecturis possit constare, quidnam id sit, turn ambiguitas, quae tune vere relinquitur, contra stipulatorem intcrpretanda est"), both in Troje, (1961) 27 SDHI 104 sq. Cf. also Raiser, op. cit., note 128, pp. 265, 270 and Krampe, op. cit., note 114, pp. 24 sqq.

~7 Already by the 15th century the contra proferentem rule had found its way into the English common law. It has come to be employed in situations where the content of the transaction is determined, on account: of an imbalance of power, by one of the contracting parties. Standard contract terms provide a prominent example. For details, see Liideritz, op. cit., note 2, pp. 247 sqq.; cf. also the comparative remarks by Krampe, op. cit., note 114, pp. 22 sq. Modern textbooks usually deal with the contra proferentem rule in connection with exemption clauses (cf. Treitel, Contract, pp. 171 sqq.). The subsidiary nature of the rule

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IV. SPECIAL PROBLEM SITUATIONS 1.

§§ 116, 117, 118, 122 BGB

Do ;s it matter what the parties intended or what they declared? This is the central question around which the discussion of interpretation revolves. It also arises in three standard situations, which we must now still look at. In all three of them a contractual declaration has been made, but the declarant never wanted to be bound by it. Thus there is a conflict between that party's (real) intention and the signum voluntatis which has actually been set. In the first case, the contractual declaration was neither intended nor expected to be taken seriously. Secondly, there is the situation where the declarant indeed intended his declaration to be taken seriously, but made a mental reservation: in his own mind, he did not wish that declaration to become effective. And thirdly we are dealing with the problem that a contractual declaration, with the connivance of the partner to the contract, is made only in pretence. The BGB regards the lack of seriousness as a vitiating factor (§ 118), considers a reservatio mentalis to be irrelevant (§ 116)138 and provides, in the case of simulation, that the sham transaction is void (§117 I).139 If the latter served to disguise another bargain, the disguised transaction may be valid (§ 117 II).140 These solutions may sound fairly obvious, but it should be appreciated that the treatment of the reservatio mentalis is highly problematic from the point of view of the will theory of contract, while from a more formalistic perspective the solution proposed in § 117 BGB may sound surprising and anomalous. Even in the case of a lack of seriousness, one may have second thoughts. For the other party may not have understood the declaration as expected and

is frequently emphasized ("the last straw moving the scale": cf. the references in Luderitz, op. cit., note 2, p. 265). South African courts, too, do occasionally apply the contra proferentem rule (with regard to standard terms and other contractual clauses), but only as a last resort, when all attempts at ascertaining the common intention of the parties have failed. Cf. Cairns (Pty.) Ltd. v. Playdon & Co. Ltd. 1948 (3) SA 99 (A) at 123; Wessels, Contract, § 1956 ("[The rule] cuts the Gordian knot and arbitrarily determines against the stipulator"); Kerr, Contract, pp. 254 sq.; Joubert, Contract, pp. 63 sq. But cf. also the recent decision of Lawrence v. Kondotel Inns (Pty) Ltd. 1989 (1) SA 44 (D) 53 sq. There the contra proferentem rule was applied, without much ado, to an exemption clause which read: "All riders ride at their own risk: If any accident should occur, Kondotel . . . will not be held responsible." In the opinion of the court, this clause did not cover accidents arising from misconduct on the part of the animal (not convincing).

138However, the declaration of intention is void if made to a person who is aware of the mental reservation (§ 116, 2 BGB). This provision has been criticized as an unwarranted concession to the will theory of contract: Ernst Kramer, in: Munchener Kommentar, vol. I (2nd ed., 1984), § 116, n. 8; but cf. Flume, A T, % 20, 1.

139For details, see Karl Michaelis, "Scheingeschaft, verdecktes Geschaft und verkleidetes Geschaft im Gesetz und in der Rechtspraxis", in: Festschrift fur Franz Wieacker (1978), pp. 444 sqq.

140This follows from the rule laid down in § 133 BGB according to which the true intention of the parties must be sought. The validity of the disguised transaction depends on whether the normal rules existing for such transactions have been complied with; thus, for instance, a transaction must be neither illegal nor immoral, and any formal requirements that may exist must have been met.

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may therefore have relied on its effectiveness. Such reliance needs protection. Hence a specific claim for compensation is provided for in § 122 BGB.14'

2. Lack of seriousness

As in the case of error,142 this right to claim the negative interest does not have any precedent in Roman law. The basic proposition about the invalidity of the transaction, however, does. A stipulation made by way of a joke, for teaching or for demonstration purposes, was invalid. Interesting is the reason provided for this result:

"Verborum quoque obligatio constat, si inter contrahentes id agacur: nee enim si per iocem puta vel demonstrandi intellectus causa ego tibi dixero 'spondes'? et tu responderis 'spondeo', nascetur obligatio."143

What matters is quod actum est, and part and parcel of quod actum est must obviously be the intention of the parties to enter into a legally relevant relationship with each other. As one can see from the examples used, the whole problem is of a somewhat academic nature.

3.Reservatio mentalis

(a)Roman law

The problem of a reservatio mentalis appears to have been of equally little practical importance in Roman law. To any practically minded lawyer it must be obvious that the secret (mental) reservation by one party to a contract not to be bound by his declared intention cannot affect the validity of the transaction.144 Certainty of law and security of transactions would otherwise be undermined intolerably. Digesta 2, 15, 12 is about the only text in which a proposition of this kind has even been considered,145 A person had made a composition that referred, quite generally, to everything that had been left to him by a specific testator. According to Celsus, he cannot afterwards claim that his intention had been directed towards the content of the first part of the will only.

(b) Pandectists and canon lawyers

One has to attribute extraordinary significance to the intention of the parties in order to find this result anomalous or questionable. Such a shift of perspective can be based on a desire to "ethicize" legal relations, but it can also be the consequence of doctrinal rigidity. Nineteenth-

141"Protokolle", in: Mugdan, vol. I, p. 712 and the remarks by Kramer, op. cit., note 138,

§118, n. 1.

142Cfsupra, pp. 613 sq.

143Paul. D. 44, 7, 3, 2. Cf. further Varro, De Lingua Latina, Lib. VI, 72 and Josef Partsch, "Die Lehre vom Schcingeschaft im romischen Rechte", (1921) 42 ZSS 248 sq. (dealing with a promise given by an actor "in tragoedia" on the stage).

144Most modern codifications therefore do not even deal with the problem.

145Cf. Albanese, Atti negoziali, pp. 162 sq.; Honsell/Mayer-Maly/Selb, p. 121.

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century legal science provides an example of the latter alternative. The result was not in dispute: a reservatio mentalis must be irrelevant.146 But how could this result be reconciled with the dominant will theory of contract? It is astonishing to see how this seemingly innocuous and rather impractical problem was able to acquire the awe-inspiring dimensions of a dogmatic "Cape Horn",147 the dreaded rock on which any attempt to explain the legal world of contract from a purely intention-oriented point of view appeared to be bound to founder. As a consequence, the problem of the reservatio mentalis featured particularly prominently among the arguments of the opponents of the will theory.148

Many centuries earlier, canon law had even gone one important step further. In their aspiration to overcome the rigor iuris Romani, to refine and emphasize subjective elements in the law and to judge legal relations under the auspices of aequitas canonica, conscientia and honestas, canon lawyers had actually been prepared to take account of the (secret, but real) intention of a person not to be bound by a legal act which he had duly and consciously performed.149 The first case known to us concerned a man who had not been able to seduce a girl, except by promising to marry her. He later on alleged that he had never intended to contract a marriage, and that it was for this reason that he had in fact made his declaration under a false name. Pope Innocent III, in a decretal addressed to the Bishop of Brixen,150 decided in favour of the man.

In the tradition of the Catholic Church, this decision was taken to attribute operative effect to a reservatio mentalis. Throughout the centuries, marriages were "dissolved" on this basis151 and, although the term "reservatio mentalis" is no longer used, contemporary Catholic marriage doctrine, as contained in the new Codex Juris Canonici, still places supreme importance on the "internus animi consensus" of the spouses. It is presumed to be in line with the "verb[a] vel sign[a] in celebrando matrimonio adhibitfa]",152 but according to Can. 1101 II a marriage has not been validly contracted

146Cf. e.g. Savigny, System, vol. Ill, p. 258.

147Alfred Manigk, Das rechtswirksame Verhalten (1939), p. 142.

148On the rol e of the reservatio ment alis in the struggl e between will theory and declaration theory cf. e.g. Otto Bahr, "Uber Irrungen im Contrahiren", (1875) \4JhJb 393 sqq.;Josef Kohler, "Studien uber Mentalreservation und Simulation", (1878) \6JhJb9\ sqq.; idem, (1878) \6JhJb 325 sqq.; Bernhard Windscheid, "Wille und Willenserklarung", (1881) 63 Archiu fur die civilistische Praxis 72 sqq.; Windscheid/Kipp, § 75; Rudolf Henle,

Vorstellungsund Willenstheorie in der Lehre von der juristischen Willenserklarung (1910), pp 1 sqq.

For what follows cf. Heinz Holzhaucr, "Dogmatik und Rechtsgeschichte der Mentalreservation", in: Festschrift fur Rudolf Gtniir (1983), pp. 124 sqq.; idem, "Reservatio mentalis", in: HRG, vol. IV, col. 926 sqq.

150Decretales Gregorii IX, Lib. IV, Tit. I, Cap. XXVI.

151"Quid absurdius dici fingique potuisset, non video", comments the Protestant Justus Henning Boehmer, Jus ecdesiasticum protestantium. Lib. IV, Tit. I, § 142.

152Can. 1101 I Codex Juris Canonici (1983).

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ipsum vel matrimonii essentiale aliquod clcmentum, vel csscntialem aliquam proprietatem".

The main difficulty, of course, lies in the proof of such a "positive act" of the will.153 Lack of the (internal) intention to marry played a prominent role in the proceedings instituted by Henry VIII to get his marriage with Catherine of Aragon annulled,154 and Napoleon Bonaparte (successfully) challenged the validity of his marriage to Josephine Beauharnais before the ecclesiastical courts on the basis of a reservatio mentalis.155 Oaths, incidentally, were the other important legal act with regard to which the problem of a mental reservation became practically relevant.156

4.Simulatio

(a)Roman law

Simulatio brings us back from the lofty heights of State affairs to the dealings of more ordinary human beings: of purchasers and vendors of land, for instance, who wish to save taxes and notarial fees and hence record a lower purchase price in their notarial deed than the one they really intend to charge and pay. This is one of the standard examples for the application of § 117 BGB: the disguising contract (as recorded in the notarial deed) is void, because it was made only in pretence; the disguised transaction (sale of the land for the higher purchase price) is invalid too, since it lacks the statutory form.157

The Roman lawyers had to battle with very similar problems. Thus, for instance, contracts of sale sometimes appear to have been concluded

153Cf. Can. 1678-80 Codex Juris Canomd.

154Cf. e.g. Hans Thieme, "Die Ehescheidung Heinrichs VIII als europaischer Rechtsfall",

in: Syntagma Friburgense, Historische Studien jiir Hermann Aubin (1956), pp. 257 sqq.

15э For details, see e.g. Joseph Schnitzer, Katholisches Eherecht (1898), pp. 646 sqq.

Napoleon and Josephine had contracted a civil marriage in 1796, but the Catholic marriage ceremony had taken place only on 1. 12. 1804, the eve of Napoleon's coronation as Emperor: Pope Pius VII had refused to crown a "concubine". Before the ecclesiastical court a variety of witnesses (inter alia Talleyrand) testified that Napoleon had not intended to enter into a marriage according to the rules of canon law. The civil marriage had already been dissolved beforehand, in accordance with art. 233 code civil. As is well known, Napoleon had taken a strong interest in the codification of French law, and left many marks upon the substance of the Code. The emphasis in the code civil on divorce "par consentement mutuel" is one example of this. Napoleon probably pressed for it, because he knew that his marriage to Josephine would remain childless (cf. Zweigert/Kotz, vol. I, p. 98). Dissolution of the marriage iure canonico had become necessary, because the (Habsburg) Emperor Franz I, whose daughter Marie Louise Napoleon now wished to marry for dynastic reasons, had insisted on it.

156 For details, see Holzhauer, Festschrift Gmiir, pp. 128 sqq. There are situations in which a person may feel (morally) obliged or may even be forced to conceal the truth and thus to commit what appears to be perjury. If, under these circumstances, he formulates his oath sufficiently ambiguously, he will not be liable (at least in foro conscientiae) for perjury, even though he intentionally deceives the (human) addressees of the oath. For to God "all hearts are open, all desires known, and from him no secrets are hid", and one will therefore be able

to rely on the fact that he will realize the real (but hidden) intention behind the words. 157 « 313 BGB.

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without any intention on the part of the vendor to exact the purchase price. They were designed to disguise donations which the parties may have been unable to conclude: be it because of the provisions of the lex Cincia, or in view of the prohibition of donationes inter virum et uxorem. It is entirely in line with the flexibility with which the question of interpretation was approached in classical law that such simulated158 transactions were, as a rule, not accepted at their face value: "Cum in venditione quis pretium rei ponit donationis causa non exacturus, non videtur vendere."159 Originally, of course, transactions had been regarded as valid when and because all formalities had been complied with. The invalidity of the simulated transaction must have been unthinkable in the archaic days of Roman law. But this kind of rigorism had long been left behind.160 With the rise of the consensual contracts, the will had become a key factor in the determination of id quod actum est, and the parties who merely pretend to conclude a sale do not, after all, really want to be bound by it. Their transaction could therefore not be accepted as a valid and effective sale; and where it had been used to disguise (for instance) a prohibited donation, the real intentions of the parties could, of course, not be given effect to either. In order to get around the prohibition of donations inter virum et uxorem, the spouses occasionally even seem to have taken the trouble to get divorced. The validity of the donation depended, according to Trebatius, on whether such a divorce was merely pretended or meant seriously. "Trebatius inter Terentiam et Maecenatem respondit, si verum divortium fuisset, ratam esse donationem, si simulatum, contra."161 Invalid, too, were contracts of sale or lease where a price or rent of one coin had been agreed upon. This did not constitute pretium verum or merces vera. Sale or lease was merely simulated, in reality "et hoc donationis instar inducit".lfl2 The Digest contains a couple of generalizing statements: "Simulatae nuptiae nullius momenti sunt",163 "[n]uda et imaginaria venditio pro non facta est",164 "[c]ontractus imaginarii etiam in emptionibus iuris vinculum non optinent, cum fides facti simulatur non

158 On the terms "simulate" und "simulatio" (derived from "similis") cf. Nadia Dumonl-Kisliakoff, La simulation en droit roma'm (Д970), pp. IS sqq., 25 sqq.

159 Ulp. D. 18, \, 36; David Daube, "Generalisation in D. 18, 1, dc contraVienda emptione", in: Studi in onore di Vitxcenzo Arangio-Ruiz vol. 1, pp. 192 sqq.

"'" Contra, particularly, Partsch, (1921) 42 ZSS 227 sqq. who comes to the conclusion that simulated transactions were, as a rule, valid in classical Roman law. This view is based on unacceptable interpolation hypotheses. Giovanni Pugliese, La simulazione nei mgozi giuridici (1938), argues that the Romans decided the question casuistically, neither were simulated transactions always valid, nor were they always invalid. Л similar opinion is held by Kaser, RPi-I, pp. 242 sq. For the view adopted here, cf. e.g. Honscll/Mayer-Nlaly/Selb,

pp.120 sqq.

161 lav. D. 24, 1, 64.

162 Ulp. D. 19, 2, 46.

163 Gai. D. 23, 2, 30. Marriages appear to have been simulated in order to avoid the

disadvantages arising from the Augustan marriage laws for unmarried persons.

164 Paul . D . 18 , 1, 5 5.

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intercedente veritate."165 But it was the rubric chosen by Justinian for his Codex title 4, 22 which became the basis for all discussions about simulated transactions in the ius commune: the adage of "plus valere quod agitur quam quod simulate concipitur". Four out of the five rescripts contained in this title are attributed to Diocletian and Maximian, under whose reign a high point in the discrimination of simulated transactions appears to have been reached.166 "Acta simulata .

. . veritatis substantiam mutare non possunt",167 they said, or: ". . . non quod scriptum, sed quod gestum est inspicitur. "16S As a consequence, all simulated acts were ineffective. Codex 4, 38, 9 makes it clear that the contract disguised by the simulated transaction may be valid: ". . . sed et donationis gratia praedii facta venditione si traditio sequitur, actione pretii nulla competente perficitur donatio." Obviously here an action on sale cannot be brought; but the donation (which was intended by the parties) is perfecta—and can therefore no longer be affected by the lex Cincia169—once traditio has taken place.

(b) Ius commune; simulatio andfraus legis

Fourteenth-century Italy again saw a proliferation of simulated transactions;170 trade and commerce were flourishing, and simulation appears to have been a popular technique to get around cumbrous local statutes and inconvenient ecclesiastical decrees, particularly the vexed prohibition against usury. So, incidentally, was the conclusion of transactions in fraudem legis: transactions which, although complying with the words of a specific law, had nevertheless specifically been designed to defeat its purpose and were therefore contrary to the spirit of the law ("[f]raus enim legi fit, ubi quod fieri noluit, fieri autem non vetuit, id fit").171 In actual practice it is often difficult to see whether a transaction has merely been simulated or is in fraudem legis, and it is hardly surprising that both doctrines have become intertwined and entangled in the course of the history of the ius commune. The term "simulation" was often used to cover all those situations where the parties had intended to circumvent a law.172 The way for this development had been paved by the commentators who had developed the same criteria for both legal doctrines and had summed up their analysis in the sentence "tot modis committitur simulatio quot modis

165Mod. D. 44, 7, 54.

166For an overview cf. M.D. Blecher, "Simulated Transactions in the Later Civil Law",

utid Gesetzesumgehung (1985), pp. 15 sqq.

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committitur fraus".173 Nevertheless, at least in theory, they had still emphasized the crucial distinction between the two: in the case of simulation, a legal transaction is made only in pretence; the parties do not really intend the transaction which they appear to conclude. This transaction does not constitute a verus actus. Agere in fraudem, on the other hand, involves an actus verus,174 albeit one that is iniustus. The parties do in fact want their act to be effective in order to achieve their aim of defeating the law.175 Simulated transactions are mere "corpora sine spiritu, et cadavera sine anima",176 acts in fraudem legis are "animated" by the intention of the parties.

Over the centuries, many refined distinctions were developed concerning simulatio.177 The canon lawyers, for instance, moralized the issue and recognized that simulation may be a legitimate way of achieving a noble end;178 after all, even the Lord himself had simulated a sinner: ". . . simulationem peccatricis carnis assumpserit, ut, condemnans in carne peccatum, nos in se faceret iustitiam Dei."179 Reprehensible and to be rejected was a simulatio ex inhonesta causa. In practice, however, the law changed very little: id praevalere debet quod agitur, ei, quod simulatur, as Grotius put the basic principle in one of his opinions.180 As a consequence, the simulated transaction was void. If the simulation had served to conceal another act,181 it was usually acknowledged that the latter could be valid.182

In the course of the 19th century, the protection of third parties relying on the validity of the simulated transaction received attention. It was argued that the contract should not be treated as invalid with

173For details, see Helmut Coing. "Simulatio und Fraus in der Lehre dcs Bartolus und Baldus", in: Festschrift fur Paul Koschaker, vol. Ill (1939), pp. 402 sqq.

174Coing, Festschrift Koschaker, vol. Ill, p. 412; cf. also Blecher, (1974) 91 SAL/368; Otto

Bahr, Urteile des Reichsgerichts mit Besprechitngen (1883), pp. 59 sqq.

175Fora similar view today cf. Kramer, op. cit ., note 138, § 117, n. 10; Flume, AT, § 20, 2; but cf. Schroder, op. cit., note 172, pp. 42 sq.; Klaus Schurig, "Die Gesetzesumgehung im Privatrecht", in: Festschrift fur Murad Ferid (1988), pp. 404 sqq.

176Lauterbach, Collegium theoretko-practicum, Lib. XVIII, Tit. I, CXVI.

177Very elaborate treatments of simulatio can be tound in Bartholomaeus Cipolla, De simulationibus and Johannes Bertachinus, Repertorium Juris; cf. Partsch, (1921) 42 ZSS 234 and, particularly, Gunter Wesener, "Das Scheingeschaft in der spatmittelalteriichen Jurisprudenz, im Usus modernus und im Naturrecht", in: Festschrift fur Heinz Hubner(\9S4), pp. 340 sqq.

17H Blecher (1974) 91 SALJ 377 sqq.

179 Decretum Gratiani, Secunda Pars, Causa XXII, Quacst. II, с 21 (with further examples of simulation from the Old Testament). Blecher (p. 378) draws attention to the fact that we are dealing here with unilateral simulation, whereas the simulatio of the civil law is usually bilateral.

1H0 "Hollandsche Consultation en Advijsen", in: D.P. de Bruyn (ed.). The Opinions of Grotius (1894), pp. 553 sqq. For details of the development, see Wesener, Festschrift Hiibner,

PPi«?38 Sqq'

In practice, this is nearly always the case; cf. e.g. Michaelis, Festschrift Wicacker, pp. 445

sqq,

Cf. e.g. Lauterbach, Collegium theoretko-practicum. Lib. XVIII, Tit. I, CXVII. But see, for instance, the provision dealing with simulated transactions in the Codex Thcresianus (Wesener, Festschrift Hiibner, p. 353).

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regard to them.183 The BGB rejected this opinion,184 but it ultimately found its way into § 916 II ABGB: evidence, again, of the relatively greater influence of the natural lawyers and their specific concern for a balance between subjective and objective elements in the concept of contract on the Austrian Code.'85' me

183Cf. the references in Windscheid/Kipp, § 75, n. 3.

184"Motive", in: Mugdan, vol. I, p. 459; "Protokolle", in: Mugdan, vol. I, pp. 711 sq. For modern attempts in German law to provide protection to third parties cf. e.g. Flume, AT,

§20, 2 с (the simulated transaction is, with regard to third parties, to be treated as reservatio mentalis!); but see Kramer, op. cit., note 138, § 117, nn. 17 sq.

185Cf. generally Klaus Luig, "Franz v. Zeiller und die Irrtumsregelung des ABGB", in:

Forsdtungsband Franz von Zeiller (1751-1828) (1980), pp. 153 sqq. and, more specifically, Wesener, Festschrift Hubner, p. 355.

186South African courts refuse to enforce simulated transactions. They give effect to the true intention of the parties rather than to what they purport to have done. In Zandberg v. Van Zyl 1910 AD 302 at 309, Innes CJ said: "Not infrequently, . . . the parties to a transaction endeavour to conceal its real character. They call it by a name, or give it a shape, intended not to express but to disguise its true nature. And when a court is asked to decide any right under such agreement, it can only do so by giving effect to what the transaction really is; not what in form it purports to be." If the parties have decided to record their contract in writing, this principle even prevails over the parol evidence rule (which, if strictly applied, could lead to severe inequities in cases of simulated transactions); cf. Christie, Contract, pp. 162 sqq.

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