!!Экзамен зачет 2023 год / The Law of Obligations

of goods and services.l64 It contained draconian sanctions (death penalty!)165 but, remarkably enough, it did not declare invalid those contracts infringing the edict. Not even in order to enforce the

cornerstone of his policy of price controls166 did Diocletian tinker with what the parties had agreed upon.167 Finally, C. 4, 44, 2 seems to fit in

well with Justinian's concept of an absolutist welfare state. Christian teaching, as well as stoic moral philosophy, demanded an infusion of ethics and of humanitas into the law and it was in this spirit that the Emperor was supposed to render aid to the weak and poor and to relax the rigours of the law. The feeling for the importance of clarity and the educational value of firm and severe legal rules made way for the urge to show consideration and avoid harsh results in individual cases by allowing equitable exceptions.168 C. 4, 44, 2 was designed to meet a special crisis. Justinian's ruthless taxation policy169 tended to force peasant farmers to sell their smallholdings and it is obvious that this situation lent itself to exploitation by urban capitalists, keen to invest their wealth in assets of a more stable value than money. The farmers in their predicament had no bargaining power at all and were often forced to sell their property at far below its real value. It is in this situation that Justinian felt compelled to intervene and to make a remedy available to the seller.

Crawford, "Finance, Coinage and Money from the Severans to Constantino", in: AKRW, vol. II, 2 (1975), pp. 567 sq.; De Martino, Wirtschaftsgeschichte, pp. 391 sqq.: Klami, Roman Law and Hardship (1987). pp. 117 sqq., 130 sqq.

1(14 For instance: 1 pound (— 327 g) of pork: 12 denarii. 1 pound of beef: 8 denarii, a chicken: 30 denarii, one fatted hen-pheasant: 200 denarii, half a litre of beer: 4 denarii, 20 cucumbers or 20 big edible snails: 4 denarii. A barber was allowed to take 2 denarii for a haircut, a primary teacher could charge 50 denarii per month and pupil, a teacher of grammar 200, of rhetoric 250 denarii.

163 Praefatio, 18; cf. also Lactantius, De mortibuspersecutorum, 7, §§ 6 sq.: "Idem cum variis iniquitatibus immensura faceret caritatem, legam pretiis rerum venahum statuere conatus est. Tune ob exigua et vilia multus sanguis effusus, nee venale quicquam metu apparebat et caritas multo detenus exarsit, donee lex necessitate ipsa posrmultorum exitium solveretur."

I6<J Which was, incidentally, not very successful and seems to have hardly outlived the Emperor who enacted it: cf. e.g. Ernst Schonbauer, "Untersuchungen iiber die Rechtsentwicklung in der Kaiserzeit", (1955-56) 9/10 JJP 53 scjq.

167 De Bondt, 1979 Juridical Review 50, 52, 55 further argues that, whereas Diocletian's main aim (pursued by means of his edictum de pretiis rerum venalium and his reforms of the fiscal system) was to stabilize the value of the money and to combat inflation, the recognition

of laesio enormis would have had the opposite effect.

16fi Cf. the clause "humanum est" in C. 4, 44, 2. On humanity in Roman Law, sec Schulz. Principles, pp. 189 sqq.; Heinz Haffter, "Die romischc Humanitas", in: Hans Oppermann (ed.), Romische Wertbegriffe, (1983), pp. 468 sqq.; Henryk Kupiszewski, "Humanitas et lc droit romain", in: Maior viginti quinque annis, Hssays in commemoration of (he sixth lustrum of the Institute for Legal History of the University of Utrecht (ed. J,E. Spruit, 1979), pp. 85 sqq. Cf. also, more specifically, on humanitas and the regulation of labour relations, Johannes Michael Rainer, "Humanitat und Arbeit im mmischen Recht", (1988) 105 ZSS 745 sqq. For a very sceptical view ot the "humanitas" displayed in C. 4, 44, 2, see De Bondt, 1979 juridical Review

58sq.

шCf. e.g. A.H.M. Jones, The Decline of the Ancient World (1966), pp. 114, 154 sqq.,

175sqq.

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(b) Extension of С 4, 44, 2

It will have been noted that C. 4, 44, 2 is very far from establishing a clear and general rule. It deals with a specific situation and thus confines itself to granting relief to a particular applicant of the name of Aurelius Lupus. All one can say is that the emperor allows the vendor to rescind the contract if he has sold a tract of land for less than half its true value; the purchaser, however, is given the opportunity to avoid such a rescission by making up the true value. Yet. the underlying legal principle, namely that a contract can be so one-sided, the disproportion in the values exchanged so gross, that the law has to intervene and provide the disadvantaged party with a remedy: this principle, once it had been accepted in one individual situation, commended itself to be applied to a whole lot of further cases. Why should legal intervention be confined to combating exploitation of the peasantry {"Baiwrnkgen")7. If the purchaser is in such a predicament that the vendor is able to sell his object (why necessarily a piece of land?) for more than double its true value, does he not equally deserve the protection of the law? It is easy enough to imagine such situations, where it is the purchaser who is the disadvantaged party. The same problems can crop up with regard to other contracts, too: a house may have been let for a rental far in excess of anything that is fair and reasonable or that is normally asked for houses of that kind. Conversely, the lessor may have been forced to agree to a rent amounting to not even half of what he should normally be able to receive.

All these and a variety of other questions began to be asked in medieval jurisprudence; and as the principle expressed in C. 4, 44, 2 was generally accepted, it is clear in which way the answers were premised. A breathtaking expansion of the institute of laesio enormis took place, in the course of which all the arbitrary restrictions of the

imperial constitution were thrown off:170 relief came to be granted not only to the vendor but also171 to the purchaser;172 the scope of

application of the rule was extended from the sale of land to that of houses and of movables173 (this was supported by the general word "rem"); it was adopted from sale into all kinds of other contracts, including, for instance, letting and hiring, compromise, exchange and even donation.174 There has, however, hardly ever been unanimity about how far one could go; most of these questions were hotly debated, the answers depending, largely, on how much the individual

170Cf. especially Dekkers. op. cit., note 156. pp. 66 sqq.; R.W.M. Dias, "Laesio

Enormis. The Roman-Dutch Story", in: Studies in the Roman Law oj Sale in memory of Francis de Zulueta (1959), pp. 46 sqq.; Wolfgang Georg Schulze, Die laesio enormis in der deutschen Primtrechtsgeschichte (unpublished Dr. iur. thesis, Minister, 1973).

171According to §§ 59, 69 I 11 PrALR, only to the purchaser.

1 2 For a comprehensive discussion sec Gluck, vol. 17, pp. 27 sqq.

ьл Or only valuable movables: Voct, Commentarius ad Pandectas, Lib. VIII, Tit. V, XII. 174 For details, see Gluck, vol. 17, pp. 120 sqq.

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authors were attracted by the idea of equality in exchange, and on how faithfully they tried to apply and interpret the sources of Roman law.

(c) Consequential problems

Still, however liberally one was prepared to dispense with the limitations of C. 4, 44, 2, the very fact that the remedy for lacsio enormis originated in this text, led to some further consequential problems. Take, for example, the case where the purchaser is the disadvantaged party. How does one apply a remedy that has been designed for the reverse situation and therefore allows the seller to rescind the contract if he has obtained less than half of the true price?175 Should one give the purchaser the same option if he has had to pay more than double?176 Let us assume the "true value" of the object sold to be 100. The vendor would then enjoy the protection of the law if the purchase price was 49 or less, the purchaser only if it was 201 or more. Thus, on this construction, the purchaser seems to lose out, for from a purely arithmetical point of view the margin of what the law still expects him to tolerate before he can avail himself of a remedy is exactly double of what is laid down in the case of the vendor: the vendor can rescind if he has been overcharged by more than 50, whilst the purchaser must have been overcharged by more than 100. This is the reason why the glossators and commentators tended to reject the purely geometrical method (as they called it) of assessment if the purchaser had suffered laesio enormis and favoured an arithmetical calculation: the purchaser should be entitled to the remedy if he had had to pay more than the true value plus half, i.e., in our example, more than 150. On purely logical grounds, neither of these approaches can be faulted, and thus the dispute was never conclusively resolved.177

Laesio enormis has been compared to the hydra: each answer to any of the questions raised seemed to cause a host of new problems. "Vides quod capita habeat haec hydra?1' exclaimed Christian Thomasius, exasperated by a string of more than thirty questions which he had just

lo For a comprehensive discussion, sec. again. Gluck, vol. 17. pp. 35 sqq. He quotes (inter alia!) Azo, Accursius. Bildus. Bartolm. Gutierrez, Covarruvias, Gomezius, Augustin Barbosa, jacobus Curtius. Johannes Voet. Gottlieb Gerhard Тишь, Samuel von Cocceji and Darjes for the one opinion, Molinaeus, Cu|acius. Duarenus, Donellus, Merenda. Ferezius, Tulden. Bockelmann and Johann Ulnch von Cramer for the other. Ct. also the discussion by Calm, (1969) 6 Studies in Medieval and Renaissance History 21 sqq.

1 This was the prevailing opinion trom about the 16th century onwards; ct. e.g. Molinaeus, "Tractatus contractuum et usurarum", in: Opera omnia (Famiis. 168]). Quaest. XIV, n. 175: Grotius. Inleiditiy. III. LI1. 2; Lauterbach. Collegium theoretuo-pniaicum, Lib. XVIII, Tit. V. X: c(. further bias. Studies De Zulucta. p. 52. "

' For a discussion of further problems and limitations ot the laesio enormis in the ius commune of the Roman-Dutch variant, see Dias. Studies De Zulueta, pp. 54 sqq.; for the ius commune generally, see Gluck, vol. 17, pp. 79 sqq., 105 sqq.

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formulated.178 In the course of time, most of the features of laesio enormis came under attack. Dimidia pars veri pretii was not always perceived to be a sensible limit of laesio enormis and thus different {equally arbitrary) criteria were set: two-thirds for the region of Wurttemberg,17y the charmingly extravagant figure of five-twelfths in the French code civil;180 and canon law even made special provision for what was called laesio enormissima—where the lesion "longe dimidium justi pretii excedat".181 A dispute arose as to whether it was justified to let the purchaser (if he so chose) make up the full value, or whether he should not only be required to pay up to whatever limit was set for laesio enormis, i.e. usually half the true price.182 After all, if onehalf or anything between one-half and the true value had been agreed upon, the vendor would not have been able to recover what was lacking of the true price. Why should he end up in a better position, where he had started off in a worse one?183 Furthermore, the legal consequences of laesio enormis came to be questioned too. Why this odd alternativity of sanctions and why, of all people, let the advantaged party make the choice? Hence, we find the right of choice occasionally being granted to the disadvantaged party; more radically, though, the whole transaction was also sometimes considered invalid in case of laesio enormis.184

(d) The problem of establishing the iustum pretium

All these problems, however, are, in a certain sense of a merely technical nature. The real crux of laesio enormis lies elsewhere. However the limits might be fixed, and whatever the nature of its sanctions, the doctrine can work only if there is a true or just price for every article, against which one is able to assess what the parties have agreed upon. Economic liberalism denies the existence of such an objective yardstick. The value in a contract depends upon the judgement of the contracting parties themselves, not upon that of other people.

De aequitate cerebrina legis secutidae C. De resc. vend., 2 § 13; for further details, see Klaus

Luig, "Bemerkungen zum Problem des gerechten Preiscb bei Christian Thomasius", in:

Tradition and EntwukUaig, Gedenkschrift fur Johannes Riederer (1981), pp. 167 sqq.

179Wiirttembcrgische Landrechte of 1555 and 1610; cf. Schulze, op. cit., note 170, pp. 31

"Article 1674, applicable only in favour of a seller of land. This restrictive tendency can be traced back to Cuiacius, Moiinaeus, Domat and Pothicr; for details, see Enrico Dell'Aquila, "L'adeguatezza tra i vantaggi nei contratti onerosi", (1979) 91 Studi Senesi 485 sqq. Article 1674 was inserted at the urging of Napoleon Bonaparte, who took a lively interest in the preparation of the code civil and left many marks on both the style and the substance of the code (which he is said to have considered his greatest achievement). Article 1674 is an exception to the general rule of art. 1118.

18' C(. e.g. Parladorius, Res Quotidianae, Lib. II, Cap. IV (pp. 246 sqq.).

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"The value of a thing . . . must be in its nature fluctuating, and will depend upon ten thousand different circumstances. One man, in the disposal of his property, may sell it for less than another would. He may sell it under a pressure of circumstances, which may induce him to part with it at a particular time. If courts of equity were to unravel all these transactions, they would throw every thing into confusion, and set afloat the contracts of mankind."185

Or, in the words of Thomas Hobbes: "The value of all things contracted for, is measured by the Appetite of the Contractors: and therefore the just value, is that which they be contented to give."186 The astounding career of laesio enormis was possible only because the medieval scholastics, and later the natural lawyers, took an entirely different view of this matter and considered equality of exchange to be one of the basic principles of the law of contracts: ". . .carius vendere aut vilius cmere rem quam valeat, est secundum se injustum et illicitum"187 as St. Thomas Aquinas put it; "[i]n contractibus natura aequalitatem imperat, et ita quidem, ut ex inaequalitatc jus oriatur minus habenti",188 to quote the "father" of a natural law, that was no longer divinely inspired, but based on human reason. But how can such inaequalitas ever be established?189 Admittedly, the price is determined by a subjective estimation. However, a price determined subjectively by all becomes objective to each. It would be sinful (or: contra ius naturale) to deviate from this common estimate in an individual transaction, for that would imply the exploitation of this particular purchaser (or vendor). Thus, the doctrine of equality in exchange was not based on the belief that each object has an intrinsic and immutable value, and that this value represents the iustum pretium.190 Neither was the just price of goods linked to their cost of production.191

185 Story, op. cit., note 153, § 245.

180 Thomas Hobbes, Leviathan, Part I, chap. IS (p. 208 of the ed. by C.B. Macpherson, 1968).

18 Summa Theologiae, Secunda secundae. Quacst. LXXVI1, Art. I. 1ВЯ Grotius, Dejure belli ac pads. Lib. 11, Cap. XII, 8.

189 For what follows, see Endemann, Studien, vol. II, pp. 6 sqq., 14, 30 sqq.; John T. Noonan,

The Scholastic Analysis of Usury (1957); John W. Baldwin, The Medieval Theories of the Just Price. Romanists, Canonists and Theologians in the Twelfth and Thirteenth Centuries (1959); Winfried Trusen, Spd'tmittelalterliche Jurispmdenz und Wirtschaftsethik, dargestellt an Wiener Qutachten des 13. jahrhunderts (1961), pp. 71 sqq.; idem, "Aquivalenzprinzip und gercchter Preis im Spatmittelalter", in: Slant und Gesellschaft, Festgabe fur Gunther Ku'chenhofJ (1967), pp. 247 sqq.; Cahn, (1969) 6 Studies in Medieval and Renaissance History 3 sqq., 30 sqq.; Raymond de Roover, La pensee economiaue des Scolastiques. Doctrines et methodes (1971); Wolter, Ins canonicum in iure civili pp. 113 sqq.; James Gordley. "Equality in Exchange", (1У81) 69 California LR 1587 sqq.; Werner Goez, "Das Ringen um den 'gerechten Preis' in Spatmittelalter und Reformationszeit", in: "Der Gerechte Preis", Beitra'ge гиг Diskussion um das "pretium iustum" (1982), pp. 21 sqq.

]Щ "Primum, in contractibus emptionum et vcnditionum, similibusque permutationibus, nequaquam attendi, nee constitui iustum pretium ex natura rei. sed hominum aestimatione, tametsi insana sit aestimatio: num si natura rei foret observanda, pluris esset aestimandus equus, quam gemma ob utilitatem equi": Covarruvias a Lcyva, Variae resolutiones, vol. II, Lib. II. Cap. Ill, 4.

191 "Sccundo hinc apparet in pretii insti aeuimarione non esse considerandum quanti res ipsa empta fuerit. nee quot labores pro eius adquisitione venditor fuerit perpessus, sed

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Instead, it was identified with the market price set under competitive conditions.

". . . iustum cuiusquc rci prctium non ex cuiuslibet affectione, nut sumptu constat, scd ex communi hominum aestimatione perpenditur: itaque tantum valet res, quantum absquc fraudc ct iniuna communiter potest homini scicnti cius conditionem. . . . Non ignoramus . . . prctia rcrum, quae usquam posuimus. alia in aliis locis esse, et omnibus pene annis mutari."147

These ideas about equality of exchange go back to Aristotle (who had argued that neither party, as a matter of commutative justice, must be enriched at the expense of the other)193 from where they were taken up and further developed by St. Thomas Aquinas. They profoundly influenced both the doctrine of canon law194 and the earlier natural-law theorists: so much so that laesio enormis, which provided relief only in certain extreme cases, was regarded as entirely unsatisfactory.195 Each deviation from the just price, so it was argued, constitutes a peccatum1''6 and is sufficiently serious to grant an action in foro externo.197 The writers of the ius commune, however, by and large adopted a more positivistic attitude; they continued to apply C. 4, 44,

tantum, habendam, esse rationem cotnmunis homincm acstimatione. Sic sane mercator, qui magnis expensis attulit merces e Flandria non potent eas carius vendcre, quam communi hominum acstimationc valeant in Hispania, alioqui restituere tcncbitur quidquid ultra iustum prctium accepent": Covarruvias a Leyva, loc. cit.

112 Covarruvias a Leyva, loc. cit. Ct. also already Gai. D. 13, 4. 3 (". . . scimus quam varia prctia rcrum per singulas civitates regionesque . . ."); Paul. D. 35, 2, 63, 2 ("Nonnullam tamen prctio varictatem loca temporaquc adferunt: ncc enim tantidem Roniae ct in Hispania oleum acstimabitur ncc continuis sterilitatibus tantidem, quanti sccundis fructibus, dutn hie quoque non ex mentis temporum nee ex ea quae raro accidat caritatc pretia constituantur"). On the individual factors to be taken into consideration in establishing the price of a thing, see, for the late Middle Ages e.g. Conrad Summcnhard von Calw, as discussed by '1 ruseii, h'estgabe G. Kikhenhoff, pp. 259 sqq., for the age of the law ot reason Samuel Pufendorf, De jure naturae et gentium, Lib. V, Cap.I, § 1 (and the analysis by Herbert Niederlander. "Zum 'Fretium rci' bci den Vernunftrechtlern", in: (.iedachtnis- schrift fur Wolfgang Kurikei (1984), pp. 283 sqq.

m Nicomachean Hihics, Book V, II, 6 sqq. (1130 b sqq.)

194 Even though the Corpus juris Canomci itself still faithfully reflects Roman law: "Tenet venditio, licet venditor sit deceptus ultra dimidiam lusti pretii; poiest tamen venditor agere, ut restituatur res vel iustum pretium supplcatur, ct, si alterum praecise petit, succumbit" (Decretales Cregorii IX., Lib. III. Tit. XVII, Cap. III).

'ъ Cf, for example, the criticism by Pufendorf, De jure naturae et gentium. Lib. V, Cap. Ill, § 9, who argued that the rule works unfairly, in that a small deviation in the price of an expensive object can cause more harm than a large deviation in the price of a small item; yet the rule applied to the second case, but not the first.

196 Cf., for example, Antonius Merenda (Alfred Pcrnice, Laheo , vol. I, p. 454, n. 2): "Concludamus ergo rationem naturalem non pan, ut contrahentes se invicem decipiant, et ideo peceare eos qui secus feccrmt." The starting point is 1. Thessalomans 4, 6: "ne quis supergrediatur ncque circumvcmat in negono fratreni suum" (vulgata-tr.); cf. also St. Matthew 6, 24. This did not mean that the Church condemned the economic activity of merchants and commercial enterprise per se; cf. supra, pp. 171, 173 sq.

147 Cf e.g. Covarruvias a Leyva, Variae resoiutiones, vol. II, Lib. II, Cap. IV, 11: ". . .

opinio vcrissima est, manifesra et urgent! admodum ratione quae dictat, naturali lege in contractibus commutativis a Rcpublica et hominum moribus in utnusque utilitatcm institutis, re ipsa cxactam et summam aequalitatem requiri exjustitia commutativa partes ad pattern . . . quo fit, dcceptioncm istam omnino esse contra virtutemjustitiac commutativae, quac in aequalitatejuxta proportionem consistit; si quis igitur ab ea virtute rccessent, id cst,

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2 and thus to require the contract price to deviate by more than half from the just price. The Aristotelian theory could, after all, be used to explain why the remedy was provided; and its limitations, as a matter of positive law, could be reconciled with the economic ethics of scholasticism by confining laesio ultra dimidmm to the forum externum and dealing with the less severe cases of laesio in foro conscientiae,198 by pointing to the flood of litigation that would ensue but for the clear limit set in C. 4, 44, 2 ("Permittit autem Jus utrimque deceptionem, quae non est ultra dimidium justi pretii, ad vitandas innumeras lites, quae sequerentur, si ex qualibet fraude daretur actio"),194 or by adopting a sort of margin approach: the contract price is iustum if it has been fixed somewhere between the highest and the lowest value of the object sold.200

(e) The abolition of laesio enormis

Once, however, the belief in one's ability to assess equality in exchange had been shaken and once the idea of private autonomy had again started to gain ground and to supersede metaphysical, "natural", or paternalistic notions of contractualjustice, the concept of laesio enormis was doomed. Inherently arbitrary and preposterous, full of pitfalls and anomalies, subversive and fatal, as it now appeared to disillusioned judges and academic writers,201 suitable only to be the object of mockery and legal satire,202 laesio enormis did not become part of the

a medio justitiae, vitium declinat. peccat et ad restitutionem tenetur"; Grotius, De jure belli acpacis. Lib. II, Cap. XII. 12: "Hi vero qui legibus dvilibus subjeeti non sunt. id sequi debent quod aequuum esse ipsis ratio recta dictat: irao et illi qui Icgibus subjecti iunt. quoties de eo quod fas piumque cst agitur, si modo leges non jus dant aut tollunt, scd juri duntaxat ob certas causas auxilium suum dencgant."

198Cf e.g. Molina, De iustitia et iure, TractII, Disp. 350, col. 404 sqq.

199Leonardus Lessius. De jmtitia et jure ceterisque virtutibus cardinalibus libri anatuor

(Venetns, 1734), Lib. 2, Cap. 21, Dubitatio IV (n. 20).

"" Lauterbach, Collegium thcorctico-practimm. Lib. XVIII. Tit. I, 53 sqq. St. Thomas Aquinas had already recognized that the iustum prctium cannot be exactly determined: ". . .

et tenetur ille qui plus habet, recompensare ei qui damniheatus esc, si sit notabile damnum. Quod ideo dico, quia justum prctium rerum non est punctualiter determinatum, scd magis in quadam aestimatione consistit; ita quod modica addmo vel minutio non viderur tollere aequalitatem justitiac": Summa Theobgiae, Secunda secundac, Quaest. LXXVII, Art I. He, and with him the other "realists", relied on the free (and unmanipulated) interplay of market forces to result in a iustum pretium. The "nominalists", on the other hand, argued for State intervention. Hence, the iustum pretium came to be fixed by public price regulations; cf. e.g. Gustaf Klemens Schmelzeisen, Polizeiordmtngm und Privatrecht (1955). pp. 436 sq.

201 These invectives have been taken from the judgment of Van den Heever JA in 'I'jollo Atetjees (Ems.) Bpk. v. Small 1949 (1) SA 856 (A) at 862 sqq. (esp. at 863 and 873) and Schulz, CRL, p. 528. For further harsh comments, see Ludwig Julius Friedrich Hopfner, Saturrecht des cinzelnen Menschen, der Gesellschaften und der Volker (6th ed., Giessen, 1795), § 92; Adolph Dietrich Weber, Systematische Entwickelung der Lehre von der natiirlichen Verbindlichkeit und deren gerichtiiche Wirkung (4th ed., 1811) § 41.

2(12 Cf. DeSpinetto, Apothecario de Venetia Politische Schnupf-Tobacs-Dose vordie WdchsemeNase derjustiz in sich fassendJuristische Streit-Frageti in Handel en Wandei von denen Kaufund Miethoder Pachtund anderen Contracten mit Satyrischer Feder entworfen und aus dem halienischett ins Teutsche ubersetzt (The Political Snuff-Box before the Waxen Nose of Justice) (1739). prise 51 sqq.

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BGB.203 For the whole of the 19th century there are no reported cases in which an action arising from laesio enormis was successful.204 In France205 and Austria206 the doctrine still exists, but it leads a very quiet, practically impotent, pensioner's life.207 The South African courts, in turn, have seen no need to revivify the moribund.208 The Tjollo Ateljees case struck the mortal blow,2"9 but it was the legislator who finally ended its existence as far as Roman-Dutch law is concerned:210 an interesting case of a formal abolition of a common-law rule.

(f) Equality in exchange today

However, as one knows, there is life after death. Modern codifications are generally disinclined to recognize inadequacy of price as an independent ground for relief. § 138 BGB is an example in point. According to its second subsection, it is not the disparity of values in itself that voids the contract; even a striking disproportion between performance and counterperformance is relevant only if it has been brought about by the exploitation of certain enumerated weaknesses on the part of the disadvantaged party.211 The code, in other words, proceeds from the assumption that, as long as both parties are in a position to assess their circumstances properly and to draw the appropriate conclusions from such an assessment,212 their contractual arrangements have to be given effect to. However, the courts have not always been happy to accept the results of such far-reaching party autonomy. On the one hand, they have begun to infer exploitation of one of the enumerated weaknesses, if the disproportion in the price is obvious and the contract therefore grossly unfair and inequitable.213 The greater the disproportion, the more willing the courts have become

211 For the arguments, see Franz Philipp von Kiibel, "Recht der Schuldverhaltnisse. Teil 2", in: Werner Schubert (ed.), Vorentwurje, pp. 20 sq.

211 The pandectists tended to regard laesio enormis as a somewhat anomalous exception to the normal principles of contract law, based merely on equity: cf. e.g. von Wachter, Pandekttn, § 207, p. 472. For references ro cases in which laesio enormis was discussed, see, for example, |ohn P. Dawson, "Economic Duress and the Fair Exchange in French and

German Law'"'. (1937) 11 Tulane LR 368. 205 Cf. supra, p. 264.

2'*l § 934 ABGB.

2lh ' In France it has again been restricted to the sale of land; the Austrian provision used to

be emasculated in practice by standardized renunciation clauses.

2()S SchreinerJ, in Botha v. Assad 1945 TPD 1 at 9. For a full discussion of laesio enormis in South African law, see Wessels, Contract, vol. II, §§ 5071 sqq.

214 Tjollo Ateljees (Fins,) Bpk. v. Small 1949 (1) SA 856 (A).

110 S. 25 General Law Amendment Act 32/1952. Cf. further H.R. Hahlo, E. Kahn, "Good-Bye Laesio Enormis", (1952) SAL/392 sqq.

211Cf. supra, p. 258.

212A "distressed situation" ("Zwangslage"), for instance, does not necessarily imply a threat to the economic existence of the disadvantaged party: see e.g. Theo Mayer-Maly, in: Miinchener Kommentar, vol. I (2nd ed., 1984), § 138, n. 124.

21 J The question of lack of judgemental ability or willpower is investigated only with

regard to the individual contract in question, no matter whether the disadvantaged party has shown these traits on other occasions; see e.g. Mayer-Maly, op. cit., note 212, § 138, n. 126.

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to conclude that there is, for instance, inexperience or indiscretion.214 On the other hand, § 138 BGB ("Legal transactions contra bonos mores are void") has been used to sidestep the restrictive requirements of § 138 II. A contract under which the one party obtains advantages in obvious disproportion to what he returns, is taken to be contra bonos mores, if the advantaged party displayed a reprehensible attitude, by either deliberately exploiting the weaker economic position of his opponent, or by grossly negligently failing to realize that the latter entered into the contract only because of his precarious situation.21S This subjective component, however, has an almost fictitious character, as the courts are prepared to draw inferences from the objective circumstances of the contract (especially the disproportion in values) without requiring specific evidence as to whether the conduct in question was wilful or grossly negligent.216 One court has even gone so far as to argue quite boldly that a particularly gross disproportion (as opposed to a merely obvious or striking one) is sufficient reason in itself to void the contract under § 138 I; and it has regarded a disproportion to be "particularly gross" if what has been promised exceeds the value of the performance by 100 %.217 These and similar developments, both in Germany218 and in other countries219—particularly the fact that the Austrian legislator in 1979 gave teeth to § 934 ABGb by disallowing renunciation of the remedy22"—have led to a renaissance of laesio enormis. This renaissance is part of a rediscovery of equality in exchange.221 The heyday of extreme individualism was short-lived and even before the BGB had come into existence the legislator started to take the first steps towards what is usually broadly referred to as consumer protection.222 Today, the question is asked whether a

214 John P. Dawson, "'Unconscionable Coercion: The German Version", (1976) 89 Harvard LR 106].

2's Cf. e.g. BGHZ 80, 153 (160); for details, see Mayer-Maly, op. cit., note 212, § 138, nn. 98 sqq.; Helmut Koziol. "Sonderprivatrecht fur Konsumentenkredite?", (1988) 188

Archiv fur die civilistische Praxis 184 sqq.

2U' Cf already RGZ 15». 1 (6).

217 OLG Stuttgart, 1979 Neuc Jurististhe Wochemchrift 2409 (dealing with a case of loan, where the annual interest was 31.08 %). Cf. also Karl Hackl, "Aquivalenzstorung und Sittenwidrigkeit". 1977 Bttriebsbtrater 1412 sqq.

21H Analysed critically by Theo Mayler-Maly, "Renaissance der laesio enormis?", in: (Zweite) Festschrift fur Karl Larenz (1983), pp. 395 sqq.; cf also Mayer-Maly. op. cit., note 212, § 138. nn. 104, 119.

211 For a comparative analysis. (France, Germany, United States) ot modern remedies, cf. Gordley, (1981) 69 California LR 1625 sqq., 1645 sqq; for a crisp and lucid analysis of English law, see P.S. Atiyah, "Contract and Fair Exchange", (1985) 35 University of Toronto LJ I sqq.

220 § 935 ABGB, amended version. Cf. the criticism by Mayer-Maly, //. festschrift Larenz, pp. 398 sq., 408.

" Cf. e.g. Franz Bydlinkski, Privatautonomie und objektive Cmndlugen des verpfiiditenden Rechtsgeschafts (1967), pp. 103 sqq., 151 sqq.; Gordley, (1981) 69 California LR 1587 sqq. Cf. also Wolfgang Blomeyer. "Der gerechte Freib mi geltenden Recht", in: "Der Qercchte Preis", op. cit., note 189, pp. 39 sqq.

2" Cf. e.g. Justus Wiihelm Hedemann, Die Fortschritte des Zivihechts im XIX. Jahrhtmdert, vol. 1 (1910), pp. 3 щц., 130 sqq.; Luig, Festgabe Coing, pp. 171 sqq.

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piecemeal modification of the law of contract, in order to protect the socially and economically weaker party, is still a satisfactory way of tackling the problem, or whether one should not rather consolidate all these reforms and conceptualize a whole new body of consumer law. This is a wide field that cannot be explored in the present context.223 Suffice it to say that this transition from freedom of contract to social responsibility can be seen, in a broader context, as a return to the ethical foundations of the earlier ius commune224 (which, in turn, had superseded the individualism of classical Roman law). One may well be sceptical about the reintroduction of rigid and (necessarily) arbitrary limitations of the freedom of the parties to fix their price, on the model of the historical laesio enormis. C. 4, 44, 2 was a relatively crude attempt to strike a balance between invicem se circuniscribere and equality in exchange.225 Some degree of flexibility will have to be built into the modern remedies, in order to allow the judge to take into consideration the specific (objective and subjective) circumstances of the case.226 But here, as everywhere, Jhering's "through Roman law beyond Roman law" has to be kept in mind. It is only by examining the continuity and transformation of Roman law within the history of the ius commune and by critically assessing our place within the rhythm ot developments that we can make meaningful progress.

225 For a general overview, see Olc Lando, "Unfair Contract Clauses and a European Uniform Commercial Code", in: Mauro Cappelletti, New Perspectives for a Common Law of Europe (1978). pp. 267 sqq. On the crisis of "classical" (liberal) contract doctrine today cf. also the literature quoted infra, p. 577, note 216.

224 Franz Wieacker, "Das Sozialmodell der klassischen Privatrechtsgesetzbiicher und die Entwicklung der modernen Gesellschaft", in: Industriegescllschaft tmd Privatredusordnuny

(1974), pp. 23 pp.

22' Cf. also Gordley, (1981) 69 California LR 1644.

""This is the thrust of both Gordley's ((1981) 69 California LR 1637 sqq.) and Mayer-Maly's (II. Festschrift Larenz, pp. 395 sqq.; cf. also Miincherter Kommentar, op. dr.. note 212, § 138, rm. 98 sqq.) argument. On the other hand, the conflicting demands of equity and certainty of law have somehow to be balanced. Hence the repeated attempts by both courts and academic writers to suggest concrete figures ro mark the borderline between what is still legal and what has to be regarded as illegal. Such attempts are understandable considering the trend to (over)extend § 138 BGB as (e.g.) an instrument of price-control. They are, however, in my view, irreconcilable with the nature of § 138 BGB as an outer limit of contractual freedom, and with the officium ludicis (cf. Zimmermann, Moderatiom-recht, pp. 47 sqq., 83).

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