!!Экзамен зачет 2023 год / The Law of Obligations

distinction between dolus causam dans and dolus incidens149 therefore sought to resolve, was the vexed question of the effects of dolus on a contract, more specifically: on a contract bonac fidei. Only dolus causam dans was taken to lead to its invalidity. If the dolus had merely been incidental to a contract of good faith, the transaction was not void, nor could the actio de dolo or the exceptio doli be resorted to: the appropriate bonae fidci iudicium itself (in the case of D. 4, 3, 7 pr.: the actio venditi) could be used to remedy the situation. Reason:

". . . contractibus bonae fidei semper ipso iure inest actio et exceptio doli; adeoquc dolo probato, absolutio excipientis sequetur, aut agenti causa rcdintegrabitur."150

With regard to contracts stricti iuris, on the other hand, the actio de dolo or exceptio doli were available irrespective of whether the dolus had been causam dans or incidens.

(b) Usus modernus and pandectists

This scheme of dealing with the effects of dolus, based as it was on the bonae fidei/stricti iuris division of contracts, survived for a surprisingly long time: it was still faithfully preserved by Roman-Dutch lawyers151 and authors of the German usus modernus.152 Only slowly did one realize that it had been overtaken by the development of a general law of contract:

"Voor het overigc kunnen wy dc verdecling der contracten, in die van goede trouw en strict recht al mede zeer wel missen, nadien volgens onze gewoontens alle contracten van goedc trouw geacht worden."IS3

In the end, therefore, the regime applicable to bonae fidei contracts was bound to prevail. Here, however, the notion that a contract affected by fraud could be void had increasingly come under attack.154 A consent obtained by fraud is still a valid consent, it was now argued;155 the declaration of the defrauded party does reflect a will that really

H" Which, according to Wacke, (1977) 94 ZSS 236 sqq. (Honscll/Mayer-Maly/Selb,

p. 128 concurring), indeed finds its root in classical Roman law.

1511 Voct, Commentarius ad Pandectas, Lib. IV, Tit. Ill, IV.

151 Voet, Commentarius ad Pandectas, Lib. IV, Tit. Ill, III sqq.; Huber, Heedendaagse Recktsgeleertheyt, IV. Boek, XXXIX. Кар. For other Roman-Dutch authors, see Wouicr de Vos, "Skadevcrgoeding en terugtredc weens bedrog by kontraksluiting", 1964 Ada Juridica 28 sqq.

1S* Lauterbach, Collegium theoretico-practicum. Lib. IV, Tit. Ill, VI sqq.; Stryk, Usus modernus pandectamm, Lib. IV, Tit. Ill, § 5; Struve, Syntagma, Exerc. ИХ, Lib. IV, Tit. Ill, XXVII sqq.

153 Cornelis Willem Decker, n. I ad Simon van Leeuwen, Het Roomsch Hotlandsche Recht {Amsteldam, 1783), IV. Bock, II. Deel, 1; cf. further e.g. Vinnius, Institutiones, Lib. IV, Tit.

VI, 28; A.S. De Blccourt, H.F. W.D. Fischer, Kort heqrip van het oud-vaderlands burgerlijk recht

(7th ed., 1959), p. 275; Gluck, vol. 4, p. 127.

b4 For a different view, see Noodt, op. cit., note 148, Cap. Ill sqq., who argued that all contracts bonae fidei affected by whatever kind of fraud were void. On Noodt's views cf. Brutti, op. cit., note 99, pp. 82 sqq.; G.C.JJ. van den Bergh, The Life and Work of Gerard Noodt (1647-1725), 1988, pp. 245 sqq.

155 Cf. e.g. Pothier, Traite des obligations, n. 29.

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existed.156 Quite apart from that, ipso iure invalidity implies that it may be invoked not only by the victim of the fraud, but also, if it suits him, by the defrauder—a result which can hardly be reconciled with the idea that a defrauder should never be allowed to benefit from his own dolus.157 Hence it came to be recognized that the effect of fraud could be, at most, to render the contract voidable at the instance of the defrauded party.

But when was the defrauded party able to rescind the contract? It was in the context of this question that the old distinction between dolus causam dans and dolus incidens received renewed attention.158 For it was clear that the defrauded party was able (apart from raising the exceptio doli) to bring the normal (bonae fidei) action available to him under the contract, in order to claim restitution. Restitution could, however, mean two different things: if it was to be assumed that the defrauded party would have refrained from entering into the contract, had he known the truth (dolus causam dans), he could ask to have the contract set aside and claim any further damages that he might have suffered. If, on the other hand, it could be established that the person sought to be defrauded would nevertheless have concluded the contract, albeit (for instance) for a lower purchase price (dolus incidens), there was no basis for a rescission of the contract: in this case the claim had to be limited to the amount by which the sum paid (or promised) on account of the fraud exceeded the sum the innocent party would otherwise have been prepared to give.

(c) Modern law

Today, the distinction between dolus causam dans and dolus incidens

survives in South African law159 and (via Pothier)160 in the French code civil,161 but not in the German BGB. As in the case of metus, the

drafters of the code civil employed the concept of relative nullity, where a contract is vitiated by fraud (dol):162 it may be invoked only by

15<1 Savigny, System, vol. HI, pp. 112 sqq.; Windscheid/Kipp § 78.

157 ". . . ne cui dolus suus per occasionem iuris civilis contra naturalem aequitatem prosit": Ulp. D. 44, 4, 1, 1. For further arguments cf. Vangerow, Pandekten, vol. Ill, pp. 274 sqq.

3 Cf. e.g. Vangcrow, Pandekten, vol. Ill, p. 275; Regelsberger, Pandekten, p. 537; Windscheid/Kipp. § 78.

■ There is, however, some doubt as to its significance. More particularly, the question has not been authoritatively settled whether the remedy of rescission is available to the defrauded party even in cases of incidental fraud. For details, see Gous v. De Kock, Combrinck v. De Kock (1887) 5 SC 405; Vlotman v. Landsberg (1890) 7 SC 301; Karroo and Eastern Board of Executors and Trust Co. v. Farr 1921 AD 413; Lee, Introduction, pp. 226 sqq.; Wessels. Contract, vol. I, nn. 1097 sqq., 1126 sqq.; De Vos, 1964 Actajuridica 33 sqq.; Van Rcnsburg, Lotz, van Rhijn, "Contract", in: Joubert (ed.), The Law of South Africa, vol. 5(1978), n. 134.

160 Traite des obligations, n. 31.

lfl1 Cf. also §§ 871 sq., 875 sq. ABGB. 162 Art. 1117.

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the party for whose protection the law has declared the transaction invalid. However, this applies only "lorsque les manoeuvres piratiquees163 par I'une des parties sont telles, qu'il est evident que, sans ces manoeuvres, Vautre partie n'aurait pas contracts"\164 Invalidity is thus confined to cases of dol principal (or substan(iel), whereas in case of a mere dol incident (or accidentel) the defrauded party may claim damages only, usually in the form of a reduction of the price.165 According to § 123 BGB, a contract may be rescinded no matter whether it has been affected by dolus causam dans or dolus incidens; it is only required that the declaration of intention has been "induced" by the fraudulent behaviour.166 The fathers of the BGB did not, however,

163 The French code thus specifies the act by means of which the deceit must have been effected ("manoeuvres"). This is clearly reminiscent of the "machinationes" of the definitions provided by both Servius and Labeo and has also been adopted in the Italian ("raggiri": art. 1439) and the Dutch {"kunstgrepen"; art. 1364) Code. Can this requirement be satisfied by mere silence (dol par reticence)? The French courts have displayed great flexibility and recognize today that dol can consist of the silence of one party concealing from the other a fact which, if he had known it, would have prevented him from contracting (Nicholas, FLC, pp. 98 sqq.). This has brought French law into line with modern German law, which does not require the deceit to have been effected by "manoeuvres"; failure to state a fact constitutes deceit if there was a duty to declare it, which in turn depends on the circumstances of the individual case. For details of this practically very important form of deceit according to German law, cf. Kramer, op. cit., note 98, § 123, nn. 13 sqq. English law follows a more conservative line (as did classical Roman law) and appears to be readier to hold a party drawing erroneous conclusions from the other party's silence to the contract. For a comparative analysis, sec Zweigert/K6tz, pp. 124 sq.; for the two interesting and very similar cases ofLaidlaw v. Organ and of the grain merchants sailing to the famine-stricken isle of Rhodes, cf. supra, p. 257. The English approach is summarized in Smith v. Hughes (as quoted above, p. 257, note 140 and p. 307, note 88.), the Roman in the sentence "aliud est celare, aliud tacere" (Cicero, De ojficiis, 3, XII—52).

lfi4 Art. 1116; cf. also artt. 1439~sq. codice civile.

lf>5 This distinction is criticized by Zweigert/Kotz, pp. 123 sq., but defended by Wacke, (1977) 94 ZSS 243 sqq.

166 Strictly speaking, § 123 BGB requires "arglistige Tauschung" (fraudulent misrepresentation). This is usually understood to mean intentional deceit (absichtliche Tauschung, as in art. 28 OR). In other words, a simple (unlawful) lie (Zweigert/Kotz, p. 123) is sufficient to render the contract voidable. For details cf. Ulrich von Liibtow, "Zur Anfechtung von Willenserklarungen wegen arglistiger Tauschung", in: Festschrift fur Horst Bartholomeyczik (1973), pp. 249 sqq.; Kramer, op. cit., note 98, § 123, n. 6. In modern South African law, the remedy of rescission of the contract is available to the victim of a fraudulent misrepresentation—a fraudulent misrepresentation being an intentional misstatcment of an existing, material fact which was intended to induce, and did in tact induce, the innocent party to enter into the contract: see, for example, Kerr, Contract, p. 267. This remedy, based squarely on dolus, is of Roman and Roman-Dutch provenance . However, the innocent parry has also long been able to rescind the contract if the misrepresentation was "nonfraudulent", i.e. either negligent or innocent; see, for example, Dickson & Co. v. Levy 1894 (11) SC 33; Parke v. Hamman, 1907 TH 47; Sampson v, Union & Rhodesia Wholesale (in liquidation) 1929 AD 468 (480); Harper v. Webster 1956 (2) SA 495 (FC) at 501. This extension occurred under the influence of English law and, apparently, with no consideration of the issues involved. In this regard, see Joubert, Contract, pp. 92 sqq., 97 sq. It does not find a basis in Roman-Dutch law. For an extension of the exceptio doli to cases of dolus praesens (to cases, that is, where it was considered fraudulent to persist with a claim even though the claim itself may not have bad its origin in any fraudulent behaviour), cf. Johannes van der Linden, Supplenientum commentarii ad pandectas (J. Voet) (Utrecht, 1793), Lib. IV, Tit. Ill, I

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want to deviate from the by then well-established doctrinal distinction. The Motive refer the reader to the rule relating to partial invalidity:'67 a transaction affected by fraud may be partly rescinded only if it is to be assumed that the defrauded party would have concluded it even if the

rescindable part had been omitted.168 The claim of the defrauded party for damages is usually based, today, on the law of delict.16y

The fate of the exceptio doli was closely connected with that of the stipulatio. With the demise of the latter170 it was bound to fall into oblivion too. The modern theory of contract, as has repeatedly been stressed, descends from the consensual contracts of Roman law,171 and these were governed by the principle of bona fides. A specific procedural device in the form of an "exceptio" was thus no longer necessary in order to check the improper excercise of contractual rights; the judge had this discretion anyway.172 The substantive content of the exceptio doli, in other words, had been absorbed into the requirement of bona fides; and if the term "exceptio doli" continued to be used, it was tantamount to a recourse to the principle of good faith inherent in

(referring to Ulp. D. 44, 4, 2, 5); Karroo and Eastern Board of Executors and Trust Co. v. Farr 1921 AD 413 at 415; cf. also Joubert, Contract, p. 97.

167 "Motive", in: Mn%dan, vol. I, p, 467; cf. also Wezel, op. cit. note 145, pp. 21 sqq.

lflH §§ 123, 142, 139 BGB; cf. further Wacke, (1977) 94 ZSS 244 sq.; Wezel, op. cit.. note 145. pp. 28 sqq.

"■9 In France § 1382 code civil is applicable; in Germany § 826 BGB and § 823 II BGB in connection with § 263 StGB (Kramer, op. cit., note 98, § 123, n. 30). In South Atrica it has always been recognized that a delictual remedy (viz. the actio doli: cf., for instance, De Wet en Yeats, p. 38) is available to claim damages flowing from fraudulent misrepresentations; certain difficulties have been experienced with regard to the calculation of damages in cases of dolus incidens; cf. Bill Harvey's Investment (Pty) Ltd. v. Oranjezicht Citrus Estates 1958 (1) SA 479 (A); Scheepers v. Handley 1960 (3) SA 54 (A); Dejager v. Grunder 1964 (1) SA 446 (A); Ranger v. Wykerd 1977 (2) SA 976 (A); De Vos, Ada Juridica 26 sqq. But the magna quaestio in South African law today is whether damages may also be claimed in cases of negligent misrepresentation. The traditional view is that they cannot: see, in particular, Hamman v. Moohnan 1968 (4) SA 340 (A); for criticism of this view as being illogical, indefensible in principle and alien to South African law, c{. the comprehensive references in Bobcrg, Delict, pp. 62 sq. However, in 1979 the Appellate Division took the momentous step of recognizing an action in delict for pure economic loss caused by a negligent misstatement (Administrates, Natal v. Trust Bank van Afrika, Bpk. 1979 (3) SA 824 (A)—see infra, p. 1042). In the wake of this decision (which was confined to negligent statements outside the field of contract) there was renewed hope that the delictual remedy would also be extended into the contractual field. This hope was indeed fulfilled, only two years after the Trust Bank case, by the Cape Provincial Division of the Supreme Court in Kern Trust (Edms.) Bpk. v. Hurter 1981

(3) SA 607 (C). Here Friedman J held (at 616F-G) that ". . . [there is] no sound reason based either in principle or logic, why an action [for damages] for negligent misstatement inducing a contract, should [be denied]. . . . Such an action fits squarely in the confines of the lex Aquilia." The Kern Trust decision was enthusiastically welcomed by Dale Hutchison, (1981) 98 SALJ 486 sqq. In the meantime, the matter has been thrown into confusion, once again, by the recent decision of the Appellate Division of the Supreme Court in Lilticrap, H'assenaar and Partners v. Pilkington Brothers (SA) (Pty.) Ltd. 1985 (1) SA 475 (A) (see infra, p. 906), where a very restrictive attitude was adopted towards recognizing Aquilian liability "in a contractual

setting" (at p. 500G).

17(1 Cf. supra, pp. 546 sqq.

171Cf, for example, pp. 546 sq.

172Cf, for example, Regelsberger, Pandekten, p. 686; Windscheid/Kipp, § 47, n. 7.

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the modern concept of contract. This is, essentially, still the position in modern German law, although the BGB itself would hardly lead the uninitiated reader to think so.173 Its draftsmen had adopted a very cautious attitude;174 nowhere did they expressly state that the exercise of contractual rights is subject to the principles of good faith. The standard of "good faith" appears only in a, seemingly, rather marginal provision (§ 242), where it relates specifically to the manner in which an obligation has to be performed.175 Soon, however, the courts seized upon the rule and converted it into a general clause governing, and transforming, the whole of the German law of contract. It has provided a convenient starting point for countless new doctrines and for the modification, subversion or abrogation of old ones, in innumerable cases it has been resorted to in order to avoid harsh or inequitable results and it has often even been regarded as the magic wand176 with which to eliminate any hardship in the world of private law. By 1961 the details of the application of this simple rule had reached such a degree of complexity that a standard commentary on the BGB devoted a whole volume of about 1 400 pages, predominantly in small print, to the compilation, classification and analysis of the rules and institutions derived from it.177 Much criticism has, over the years, been levelled at the excessive proliferation of equitable inroads into established legal principles.178 On the other hand, however, consensus has emerged over certain legitimate extensions of the principle enunciated in § 242 BGB; they have become so firmly established that they are seen today to form an indispensable part of the modern legal landscape.179 One of those is the doctrine of the improper exercise of a right ("Lehre von der

173Cf., for example, the discussion as to whether, even after the enactment of the BGB, the exceptio doli continued to exist, by Windscheid/Kipp, vol. I, pp. 214 sqq.

174"Protokolle", in: Mugdan, vol. I, pp. 796 sq.; for further examples of a similarly cautious attitude (firm and stable legal rules must not be replaced by equitable judicial discretion), cf. Fritz Rittner, "Ermessensfreiheit und Billigkeitsspielraum des Zivilrichiers im deutschen Recht", in: Ermessensfreiheit und BiUigkeitsspieiraum des Zivitrichters, vol. 24 of Arbeiten zur Rechtsvergleichung (1964), pp. 32 sq.

175On which, see "Protokolle", in: Mugdan, vol. II, pp. 521 sqq. and Rudolf Henle, Treu und Glauben irn Rechtsverkehr (1912), pp. 30 sq.

176"Prdtorische Zauberfortne!"'; Bruno Heusingcr, Rechtsfindung und Rechtsfortbildung im

Spiegel richteriicher Erfahrung (1975), pp. 109 sq.

17? Wilhclm Weber, in: Staudinger (11th cd., 1961), § 242.

178 For very strong, and early, criticism in this regard, cf. Henle, op, cit., note 175, pp. 3 sqq. ("Diese Bestimmung mil ihrem redlichen Biedermannsgesicht ist zum Triiger einer unheilvollen Seuchegeworden, die am Mark unseres Rechtslebens vergifiend zehrt." This provision has become, behind its mask of honesty, uprightness and trustworthiness, the source of a baneful pestilence, gnawing in a most sinister manner at the inner core of our legal culture). Cf. also the warnings by Justus Wilhelm Hedemann, Die Flutht in die Generalklauseln, Eine Gefahrjur

Recht und Staat (1933) (still a classic).

179 Cf., in particular, the influential study by Franz Wieacker, Zur rechtstheoretischen Prazisierung des § 242 BGB (1956); today, for example, Gunther H. Roth, in: Munchener Kommentar, vol. II (2nd ed., 1985), § 242, nn. 12 sqq., 52 sqq., 106 sqq. Generally on the problem of judge-made law in a codified system, from a constitutional point of view, cf. BVerfGE 34, 269 (286).

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unzuldssigen Rechtsausiibung") in its various emanations.180 It is this doctrine into which the "productive force of the exceptio doli"181 has been channelled in modern German law.

A lively discussion whether the exceptio doli, as such, still exists in modern law has taken place in South Africa. Until recently, academic opinion was divided as to its existence and applicability. Some writers, including the influential Professor J.C. de Wet of Stellenbosch,182 took a sharply negative attitude. Others were strongly in favour of it. A.J. Kerr called it "an outstanding example of equity at work".183 The South African courts, too, failed for a long time to adopt a uniform approach; some judges expressed great scepticism as to the survival of the exceptio doli,184 others merely assumed its existence,185 while still others came out strongly and unambiguously in favour of it. In Sonday p. Surrey Estate Modem Meat Market (Pty.) Ltd.,™6 Tebbutt J went as far as to declare it to be

"clear . . . that [the exceptio doli] has been accepted as part of our law, both by Provincial Divisions as well as the Appellate Division".

In the recent case of Bank of Lisbon and South Africa Ltd. v. De Ornelas,187 the South African Appellate Division has, however, ultimately attempted to settle the matter. In an extraordinary judgment,188 Joubert JA (speaking for the majority) embarked on a

180Roth, op. at., note 179, § 242, nn. 224 sqq.

181Dernburg, Pandekten, vol. I, § 138, 4 in fine.

182"EstOppel (,y Representation" in die Suid-AJrikaanse reg (1939), pp. 83 sqq.

183Kerr, Contract, p. 137. For further comment, see, for example, P.J. Aronstam, "Unconscionable contracts: The South African solution?", (1979) 42 THRHR 21 sqq.; A.D. Botha, "Die exceptio doli generahs, rektifikasie en estoppel", (1980) 43 THRHR 255 sqq.; C.F.C. van der Walt, "Die huidige posisie in die Suid-Afrikaanse reg met betrekking tot onbillike kontraksbedinge", (1986) 103 SALJ 646 sqq.

184Cf e.g. Aris Enterprises (Finance) (Pty.) Ltd. v. Waterberg Koetkamers (Pty.) Ltd. 1977 (2) SA 436 (T) at 437G-438C; Novick v. Comair Holdings Ltd. 1979 (2) SA 116 (W) at 156B-157B.

185Paddock Motors (Pty.) Ltd. v. Igesund 1976 (3) SA 16 (A) at 27H-28F; Zuurbekom Ltd. v.

Union Corporation Ltd. 1947 (1) SA 514 (A) at 535-7.

1861983 (2) SA 521 (C) at 530H.

1871988 (3) SA 580 (A).

188To which (Judge) Alvin B. Rubin's remark, aimed at the American judiciary, would appear to apply; "Let me mention one other time-consuming task of judges that appears to me to be an obsessive preoccupation. It is our concern, particularly at the appellate level, with trying to write the kind of opinion that we think law school teachers will consider scholarly" ("Bureaucratization of the Federal Courts, The Tension Between Justice and Efficiency", (1979-80) 55 Notre Dame Lawyer 655). In the Bank of Lisbon case, Joubert JA took the opportunity to join the academic battlefield and to pass judgment, not only on the question of the existence of the exceptio doli in South African law, but also on the merit of the contributions of other academic writers. J.C. de Wet's doctoral thesis found favour in Joubert JA's eyes (". . . as De Wet correctly pointed out" (p. 598A}), but the unpublished

(!)thesis of a relatively junior academic from Bloemfontein became the object of severe criticism ("These views of Botha are untenable and must be rejected . . . " (p. 604E); "They

would seem to be pure speculation on his part" (p. 605C); "He also overlooked the fact that

. . ." (p. 605C); all in all, more than 100 lines of the reported judgment are devoted to a

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detailed analysis of Roman and Roman-Dutch sources on the basis of which he came to the conclusion that "the raison d'etre of the exceptio doli generalis had disappeared in the law of contract at the end of the Middle Ages"189 and that therefore

"[a]ll things considered, the time has now arrived . . . once and for all, to bury the exceptio doli generalis as a superfluous, defunct anachronism. Requiescat in pace".190

It is, however, rather doubtful, whether the "productive force" of the exceptio doli can in fact be quelled that easily, particularly if one denies, as Joubert JA does,191 that the underlying equitable principles were incorporated, under the aegis of bona fides, into classical Roman-Dutch and (consequently) modern South African law. The exceptio doli may well, therefore, haunt the courts and legal writers from its grave.192

discussion of Botha's views). For a comparative analysis of citation practices by appellate courts, see Hein Kotz, (1988) 52 RabehZ 644 sqq. (where a fuller extract from Rubin's article appears on p. 657).

1891988 (3) SA 580 (A) at 605D.

190At 607A-B.

191At 605B-F and 609I-610E; but see 599A-B read together with the statement on p. 596 H; d. also jansen JA, on p. 616 C.

192Cf also Jansen JA in his dissenting opinion (at pp. 611 sqq.). He argues that the exceptio doli generatis still constitutes a substantive defence in modern South African law, based on the sense of justice of the community. Jansen's views are criticized, unusually severely, by joubert JA ("His explanation . . . is, with respect, entirely unacceptable. It tails to take cognizance of the fact. . . . There is . . . not a scintilla of evidence . . . not supported by any authoritative Roman-Dutch legal sources. . . . He also, with respect, overlooks the fact . . . " (at 609G-610A)}. For further comment on the Bank of Lisbon case, see Michael A. Lambiris, "The Exceptio Doli Generalis: An Obituary", (1988) 105 SALJ 644 sqq.

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CHAPTER 22

Invalidity and Reasons for

Invalidity

I. INVALIDITY 1.

Terminological and conceptual problems

(a) The black cat which was not there

On 21 January 1942 in the Transvaal town of Germiston a certain Miss Van der Westhuizen married her lover, Mr Engelbrecht. Miss Van der Westhuizen was a minor and the marriage took place against the express prohibition of her parents; the marriage officer had been induced to believe that the bride was in fact of age. When Mr Van der Westhuizen sen. became aware of these facts, he promptly instituted an action against the couple (who had, in the meantime, broken off all relations with each other) to have the marriage declared null and void. Since a similar case had never been decided by a South African court, Mr Justice F.P. van den Heever took the opportunity to reflect on the meaning of the term "invalidity" in the old authorities.1 Voet, he found, distinguished between juristic acts which are ipso iure null and void as opposed to those which require a declaration of nullity.2 But then, virtually in the same breath, he recognized an almost universal practice, dictated by caution,3 of obtaining judicial restitution, even with regard to juristic acts "quae vere nulla sum". The words "ipso iure" (null and void) here, as in many other discussions on the topic, seem to be without any relevance; they are "thrown in for good measure and, apparently, for their sound".4 After a lengthy historical exposition, Van den Heever J was driven to the conclusion that, in dealing with nullity ipso iure and seeking to attribute substantive significance to the distinction between the voidability and nullity of legal acts, the commentators of the ius commune "were like blind men looking in a dark room for a black cat which wasn't there".5

1Van der Westhuizen к. Engelbrecht and Spouse and Engelbrecht v. Engelbrecht 1942 OPD 191 at 195 sqq.

2Commentarius ad Pandectas, Lib. I, Tit. II, XVI.

3"Unde et quia nonnumquam ipso inter juris interpretes controversum est, an ipso jure quid nullum sit, an vero per judicem rescindendum, usu hodierno passim fere in tribunalibus obtinuit, ut et adversus ea, quae vere nulla sunt, majoris securitatis ergo, restitutio impetretur, eaque mediante rescindatur quod actum gestum contractumve fuit."

4Van der Westhuizen v. Engelbrecht and Spouse & Engelbrecht v. Engelbrecht 1942 OPD 191

at 196.

s At 199.

678

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In fact, our discussion, in the previous two chapters, of the effects of mistake, duress and fraud on contracts, has already demonstrated6 that Van den Heever's analysis is not far off the mark. Whether and under which circumstances a contract affected by these "vices of consent" was void, voidable, liable to be rescinded, relatively invalid, etc. has never been entirely clear. Additional difficulties arose from the fact that no generally accepted, uniform terminology was employed by the various authors of the ius commune;7 what was referred to as "rescissio" by the one was termed "resolution et nullite" by another.8 Only comparatively few of them stuck to clear-cut distinctions such as the ones proposed by Blasius Altimarius:9 namely that there are contracts which are ipso facto nulli, others which have to be declared null and void by a court of law (such a declaration having ex tune effect) and those which may be rescinded ex nunc.

(b) "Invalidity" according to the ius civile

The source of this confusion was, of course, the Roman law. There were two chief difficulties that systematically minded lawyers, who wanted to remain faithful to the sources, had to battle with. For, on the one hand, legal transactions could be "invalid", in classical Roman law, according to the ius civile. About 30 different terms survive in our sources to describe that result: nullum, nullius momenti, non esse, invalidum, nihil agere, inutile, inane, irritum, imperfectum, and vitiosum feature particularly prominently.10 To bring them into any kind of systematic order would be an absolutely hopeless task. The Roman lawyers were mainly interested in whether an action was available in a given situation or not; they did not pay too much attention to a neat analysis of why an action could not be granted under certain circumstances and what further ramifications that entailed.11 Thus, for instance, it was perfectly possible for them to declare the sale of a res religiosa to be invalid ("nullum esse emptionem")12 and yet at the same time to make the actio empti available to the disappointed "purchaser" for "quod interfuit eius ne deciperetur".13 Irritating for the modern lawyer is also the fact that no clear distinction was drawn

6Cf. supra, pp. 583 sqq., 651 sqq., 662 sqq.

7The same difficulty still persists today. Thus, for instance, the term "relative invalidity" (used by A.S. Hartkamp, Der Zwang im Privatrecht (1971), pp. 174 sqq.) has a different meaning in French law and in German law. In the former it refers to situations where only one of the parties may invoke the invalidity (cf. supra, pp. 661, 672), in the latter to cases where the transaction is to be treated as invalid only with regard to certain persons (cf. e.g.

§135 BGB and Hubert Beer, Die relative Unwirksamkeit (1975)).

8Cf. e.g. Coing, p. 414 (referring to Molina, Pothicr and Perezius).

9Tractatus de nullitatibus, as quoted by Coing, p. 414.

Santi di Paola, Contributi ad una leoria della invalidita e della inefficacia in diritlo romano

(1966), pp. 13 sqq, 72 sqq., 83 sqq., 93 sqq. and passim; Kaser, RPr I, p. 247. 1 Kaser, RPr I, p. 246.

12Ulp. D. 18, 1, 22.

13Mod. D. 18, 1, 62, 1. For details cf. supra, p. 243,

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between those cases where a valid contract had not come into existence (because of the lack of one of its requirements)14 and where a transaction had in fact been concluded but was unenforceable "hire civili" because its content was, in some or other way, objectionable.15 All that one may perhaps say by way of generalization is that the label "invalidity" usually implied that a transaction was denied its natural (or typical) consequences.16 As a rule, this type of "civilian" invalidity could be invoked by anybody and at any time. But there were exceptions; the querela inofficiosi testamenti was probably the most important one. This was the complaint by a person, who would have been an intestate heir, but who was omitted or disinherited in the testator's will.17 Even though such a will was contra officium pietatis and thus objectionable, it was valid until it had been declared null and void by the court with which the querela had been lodged. In this instance it was up to the aggrieved party, therefore, to decide whether to void the transaction or not. In this respect it resembles the modern concept of voidability (rescindability) of transactions.18

(c) Ius honorarium

Secondly, however, account must be taken of that other layer of legal rules of which classical Roman law was made up: the ius honorarium, developed by the praetors over the centuries and eventually revised and codified under Emperor Hadrian.14 A variety of transactions, valid according to the civil law, were effectively invalidated by the praetor, in that he either refused to grant an action (denegatio actionis) or authorized the insertion of an exceptio into the procedural formula.20 Alternatively, he ordered restitutio in integrum by granting remedies such as the actio quod metus causa, the actio de dolo or specific iudicia rescissoria.21 This kind of reinstatement into the former legal position also effectively resulted in the annulment of a legal transaction, which was valid according to the ius civile. Again, the Roman lawyers were unconcerned about dogmatic niceties: was the transaction void or voidable and, if the latter, did thejudicial or praetorian pronouncement have its rescissory effect ex tune or merely ex nunc?22

(d) Classical and Justinianic law

To disentangle "civilian" and "praetorian" "invalidity" as such would

!4 Usually, however, the term "impcrfectum" appears to have been used in this context.

1S On this distinction, see, most recently, C.F.C. van der Walt, (1986) 103 SALJ 650. lfl Kaser, RPr I, p. 247.

17 Cf. generally Kaser, RPr I, pp. 709 sqq.; idem, RPr II, pp. 601 sq. 1K Honsell/Mayer-Maly/Selb. p. 115.

19Cf. generally Max Kaser, "'Ius honorarium' und 'ius civile"', (1984) 101 ZSS 1 sqq.

20Kaser, RPr I, p. 248.

21Cf. supra, pp. 655 sqq., 662 sqq.

22Cf. Max Kaser, "Zur in integrum restitutio, besonders wegen metus und dolus", (1977) 94 ZSS 107 sq.

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