!!Экзамен зачет 2023 год / The Law of Obligations

vein about the impact of initial objective impossibility on a contract of sale is that the (primary) obligation to transfer vacua possessio of the object did not exist: in that respect impossibilium was indeed nulla obligatio.101 To say, however, that this always entailed invalidity of the whole transaction, is merely a modern and ahistorical jaqon de parley. The sale was invalid in so far as it did not have its normal or typical consequences: the vendor did not have to honour his primary obligation (because he could not), the purchaser did not owe the purchase price, and where he had paid it, he could claim it back by way of the condictio. This kind of "invalidity" did not, however, exclude the possibility that under certain circumstances a contractual action for the positive interest102 could be brought against the vendor.

5.Impossibilium nulla obligatio est under the (earlier) ius commune

How, under these circumstances, could the development of the ius commune lead up to general statements such as the one pronounced by Solomon ACJ in Peters, Flamman & Co. v. Kokstad Municipality: "By the Civil Law a contract is void if at the time of its inception its performance is impossible"?103 Glossators, commentators and writers up to the period of the usus modernus pandectarum104 essentially stuck to the pattern which they found in the Roman sources: they differentiated between sale and stipulation. Only the latter type of transaction was invalid due to impossibilium nulla est obligatio. In actual practice the maxim was therefore ultimately bound to lose its field of application; with the acceptance of ex nudo pacto oritur actio, the stipulation was, after all, no longer of any significance as a special type of contract.105 Savigny (one of the last authors who confined the Celsinian rule to stipulations) came to the conclusion, that contracts of sale and similar transactions were valid, except where the purchaser had known about the initial objective impossibility.106 This view was based on sources such as Mod. D. 18, 1, 62, 1 and Lie. Ruf. D. 18, 1, 70, and meant that the vendor (even if he had been nesciens) was liable to pay "quod sua [i.e. the purchaser] interest deceptum non esse" (we would say: the positive interest). In this instance, however, Savigny did not prevail. Hugo Donellus had made the first attempt to elevate the crisp

due to the deviation between reality and the intentions of the parties, the transaction lacked any sense or purpose. Meaningful, however (despite impossibility of performance!), and therefore not invalid, the sale of a liber homo as a slave. This is hardly convincing.

101Cf. also Hausmaninger/Selb, pp. 286 sq. The argument of Peters, Festschrift Kaser, pp. 303 sqq., appears to be too radical.

102Cf. supra, pp. 241 sqq.

1031919 AD 427 at 434.

104For details, see Wollschla'ger, Unmoglickkeitslehre, pp. 18 sqq., 23 sqq., 31 sqq.

105Cf. supra, pp. 546 sqq.

106Obligationenrecht, vol. II, p. 290; on Savigny's view cf., most recently, Arp, Anfangliche Unmoglichkeit, pp. 136 sqq.

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and handy maxim contained in D. 50, 17, 185 to the status of a principle of universal applicability.107 If the object of the transaction did not exist, every kind of contract, in his opinion had to be regarded as invalid; for, irrespective of whether a stipulation was involved or not, it would be absurd to allow one party to demand the impossible from the other. As far as the contract of sale was concerned, Donellus could refer to Paul. D. 18, 1, 57. Only in certain instances (cf. particularly Mod. D. 18, 1, 62, 1) did the contract have a limited form of validity. But these were narrowly confined exceptions to the general rule of "impossibilium nulla est obligatio".

6. The approach of the natural lawyers

Nevertheless, by accepting these exceptions, Donellus was still moving within the framework set out by the Roman sources. It was left to the

natural lawyers to challenge traditional doctrine in a more fundamental way.ll)8 Discarding the subtleties of Roman law, they found an

altogether new starting point for determining the effect of initial impossibility on contractual obligations in the idea that (in the words of Grotius:) "de verbintenisse is een gebruick van eens mensche vrije macht".'09 The content of a contractual obligation is attributable to the promisor only if it is based on the exercise of his free will. The promisor must have chosen to be bound, and as a rational being he can choose only what he is able to carry out. This train of thought goes back to medieval moral theology and, even beyond that, to the theory of attribution of human acts contained in Aristotle's Nicomachean Ethics.uo St. Thomas Aquinas described this connection between electio and possibilitas particularly clearly ("Et ideo voluntas completa non est nisi de possibili, quod est bonum volenti. Sed voluntas incompleta est de irnpossibili: quae secundum quosdam velleitas dicitur, quia scilicet aliquis vellet illud, si esset possibile. Electio autem nominat actum voluntatis iam determinatum ad id quod est huic agendum. Ed ideo nullo modo est nisi possibilium")111 and applied it to vow, oath and marriage promise. A vow (votum) is a promise made to God and it is obviously without any religious (and thus legal) significance if it involves an act that cannot possibly be carried out. An oath, too, is without much value (and thus invalid) "[s]i . . . est talis res quae in eius [i.e. the person taking the oath] potestate non fuit".112 The

The views of Donellus, as concained in his Commentarii de Jure Civili, are analysed by Wollschlager, Unmoglichkeitslehre, pp. 28 sqq.

1Ш For what follows cf. Christian Wollschlager, "Die willemtheoretische Unm5glichkcitslehre im aristotelisch-thomistischen Naturrecht", in: Syrtipatica Franz Wieacker (1970), pp. 154 sqq.

109lnkiding. III, I, 19.

110For details, sec Wollschlager, Sympotica Wieacker, pp. 156 sqq.

111Summa Theohgiae, Prima Secundae, q. 13, art. 5, ad 1.

"~ Summa Theologiae, Secundae Secundae, q. 89, art. 7 (sub: rcspondco).

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impossibility is here conceived of as a vice of the will. The promise must have been made "voluntarie",113 which entails, inter alia, that what has been promised must be subject to the free will of the promisor. What is (to him) impossible cannot, however, be subject to a person's will. Under this perspective, incidentally, "objective" and "subjective" impossibility appear to be on a par: attention is focused on the individual promisor and his ability to carry out what he has promised. A's vow cannot become acceptable due to the fact that В or С would be able to honour it. Impossibilitas and impotentia are therefore used synonymously and entail the same legal consequences. This is apparent particularly in the canon law of marriage, where impossibilitas coeundi (impotentia in the narrow, sexual sense), a classical example of merely subjective (initial) impossibility, was regarded as an impediment to a valid marriage. The phrase coined by St. Thomas Aquinas in this context ("nullus potest se obligare ad impossibile")114 is more than vaguely reminiscent of Celsus' famous rule, but has, at the same time, acquired a new dimension: nobody can bind himself to do what is beyond his powers. Grotius generalized these ideas and Pufendorf further refined them.115 Thus, already in Grotius' Inleiding (!) we read that, since contractual obligations

"vereisschen voor eerst vrij oeffening des willes, . . . zoo en кап ооск пае Ч aengebooren recht niemand hem zelve verbinden tot zaken die alle menschen, ofte hem in 't byzonder, zijn onmoghelijck ofte ongeoorloft":116

by natural law man cannot bind himself to things which are impossible or not permitted for men generally or for him in particular. Reason: the free will of the promisor can be directed only towards an act or a performance which is within his (personal) potestas.

7. Pandectist doctrine

Based, as they were, on freedom of choice and of contract, these views could not fail to commend themselves to the pandectists. Man can will only what lies within the reach of his volition. The law of contract is based on the freedom of will. Ergo: a contract directed at something impossible must be invalid. What remained to be done was to test this result against the sources of Roman law (and then to claim that it was derived from them). For while Savigny and his followers (the so-called historical school of law) had once set out to return to the truth and purity of Roman law (as contained in the pages of the Corpus Juris

113Cf. e.g. Summa Theologiae, Secundae Secundae, q. 88, art. 1.

114In quatuor libros Sententiarum , Dist. 34, q. 1, art. 2, in: S. Thomae Aquinatis Opera Omnia, vol. I, Frommann, Holzboog, 1980 (ed. Robertas Busa), p. 604. Cf. also the regula iuris ("nemo potest ad impossibile obligari") in Pope Boniface's Liber Sextus Decretalium, Lib. V, Tit. XII, De regulis iuris, VI.

115On Pufendorf's views, see Wollschlager, Sympotica Wieacker, pp. 174 sqq.

116III, I, 19.

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rather than in post-reception legal literature), it was nevertheless a somewhat idealized version of it which they had in mind; and in the course of the 19th century, the historical approach was overlaid and finally replaced by the exaggerated dogmatism of theorizing law professors, who attempted to bring the sources into some sort of systematical and conceptual shape, so as to fit in with their scientific calculus.

The man to do the job in this specific case was Friedrich Mommsen.117 In D. 50, 17, 185 he found the necessary and

authoritative confirmation of the fact that a contract is void if at the time of its inception performance is impossible. For Mommsen, this was a principle of universal validity. Irritating obstacles (in the form of texts such as D. 18, 1, 70, D. 18, 1, 62, 1 or Inst. Ill, 23, 5) were rather forcibly removed (for instance, by implying dolus, or 'culpa lata\ on the part of the vendor).118 On the other hand, Mommsen recognized that the problem had never been approached by the Roman lawyers from the point of view of the individual debtor's facultas dandi (or praestandi) and that application of "impossibilium nulla obligatio est" therefore had to be limited to cases of objective impossibility.119 Mommsen's exposition satisfied the contemporary desire for neat and clear-cut principles. Within a short time, it gained wide-spread support120 and duly received the highest possible accolade in the world of late 19th-century pandectism: it was adopted (and thus virtually canonized) by Bernhard Windscheid in his Lehrbuch des Pandektenrechts.12* Its modern statutory version is § 306 BGB.

8. Recovery of damages

"A contract, the performance of which is impossible, is void"—"void" being, in modern parlance, an unambiguous terminus technicus,122 it necessarily follows that the purchaser will not be able to avail himself of a contractual action {the actio empti) to claim what we would call his "positive" interest. Nevertheless, the vendor may under certain circumstances be obliged to compensate the purchaser for his (reliance) damages.123 That was realized, first of all, by the natural lawyers, who merely applied the general principles of delictual liability to this situation. Fault, in their view, creates the obligation to make good any

117Die Untnoglichkeit der Leistung in ihrem Einfluss auj obligatorische Verhiihnisse (1853), pp 102 sqq.

F. Mommsen, Unmoglichkeit, pp. 117 sqq.

119F. Mommsen, Unmoglichkeit, pp. 5 sq.; cf. further Dernburg, Pandekten, vol. II, § 16; Windscheid/Kipp, §§ 264, 315.

120 But see Alois Brinz, (1857) 5 Kritische Uberschau der deutschen Gesetzgebung und Rechtswissenschqft 281 sqq.

121§§ 264, 315.

122Cf. supra, p. 681.

123On the concepts of positive and negative interest cf. supra, pp. 243 sq., 298 sq.

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damage caused,124 and thus it is not surprising to find Pufendorf granting an action in case of negligence and dolus: if the vendor knew or could have known that he was unable to honour his obligation, he has to compensate the purchaser for "id quod interest ne ita sibi illuderetur".125 Nineteenth-century legal science rejected the generalized form of delictual liability developed by the natural lawyers and returned to the established principles of Aquilian liability.126 Both Savigny and Mommsen therefore confined the purchaser's claim to dolus.127 Culpa as such could not be recognized as an independent causa obligationis, whereas in case of fraud the actio doli was available. It was Rudolf von Jhering, with his famous "discovery" of culpa in contrahendo,128 who opened up a new perspective. He argued that the vendor could be liable for (as he termed it) the negative interest in case of pre-contractual negligence. According to Jhering, this form of liability was contractual in nature, and it is therefore amusing to see that he bolstered up his theory by referring to rules such as § 284 I 5 PrALR,129 emanations of the natural-law theories of delictual liability. § 307 BGB ("If a person, in concluding a contract, the performance of which is impossible, knew or should have known about the impossibility, he is obliged to compensate for any damage which the other party has sustained by relying upon the validity of the contract . . . ") has essentially codified Jhering's view,130 despite the fact that Windscheid131 had gone even further and postulated the same strict form of liability that was eventually adopted in the parallel situation of invalidity due to error.132

9. §§ 306 sq. BGB: evaluation

This ultimately leaves us with the question whether the solution adopted by the BGB is not only theoretically and conceptually but also practically satisfactory. That question is usually answered in the negative. Ever since Ernst Rabel launched his spirited attack on §§ 306 sq. BGB,133 these rules have been regarded as unsound and unfortunate.134 Neither logic nor policy compels a legal system to

124Cf. infra, pp. 1032, 1033 sq.

125Dejure naturae et gentium. Lib. Ill, Cap. VII, § 2; cf. also § 1295 ABGB.

126Cf. infra, pp. 1036 sqq.

127Cf. Savigny, System, vol. HI, pp. 293 sqq.; F. Mommsen, Unmoglichkeit, pp. 107 sqq. 12K Cf. supra, pp. 244 sq.

129Cf. supra, p. 245.

130Cf. also De Wet en Yeats, p. 78; Joubcrt, Contract, p. 128 for South African law.

131Cf. Windscheid/Kipp, § 315, n. 7; but cf. "Motive", in: Mugdan, vol. II, p. 98;

"Protokolle", in: Mugdan, vol. II, pp. 615 sqq.

132§ 122 BGB; cf. supra, p. 602.

133Unmoglichkeit der Leistung (1907) and Uber Unmoglichkeit der Leistung und heutige Praxis

(1911), both today in Ernst Rabel, Gesammelte Aufsatze, vol. I (1965), pp. 1 sqq., 56 sqq.

134Cf. e.g. Zweigert/Kotz, pp. 204 sqq.; Alfred Sollner, in: Munchener Kommentar (2nd ed., 1985), § 306, n. 3; Ulrich Huber, Leistungsstorungen, in: Gutachten und Vorschlage гиг

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declare contracts, the performance of which is impossible, as void. It is obvious, of course, that the impossible performance as such cannot be rendered; but there is nothing inherently illogical in making a person pay damages for failure to do what he has undertaken to do. A claim for merely the negative interest (as provided for in § 307) is often insufficient. A contract of sale, for instance, induces in the purchaser a reasonable135 reliance that he will in due course receive the promised object; if performance turns out to have been impossible from the outset, he can therefore expect to be put in the position he would have been in had the contract been properly carried out (as opposed to the position he would have been in had he not relied upon the validity of the contract). Textbooks and commentaries are therefore full of exhortations to apply § 306 BGB restrictively and to try to avoid the harshness inherent in the unequivocal verdict of invalidity wherever possible. Occasionally, for instance, the undertaking of a specific guarantee is read into the contract, with the effect that the risk of initial impossibility of performance is shifted to the person who has promised such performance. This was the solution adopted in an oft-quoted decision136 of the Regional Appeal Court of Hamburg.137 Here, 1 000 boxes of new potatoes from the Canary Islands "aboard S.S. Thekla Bohien afloat" had been sold. As it turned out, however, only 106 boxes had been loaded. We are dealing here with a case of initial objective impossibility, since the specific goods that had been sold did not in fact exist.138 Nevertheless, the court did not regard the sale as

Uberarbeitung des Schnldrechts, vol. I (1981), pp. 813 sqq.; for a vigorous countercritirism, see Arp, Anfangtiche Unmb'gtichkeit, pp. 35 sqq. and passim.

5 Such reasonable reliance is lacking in cases where the content of the contract is patently absurd, as, for instance, where the inevitable hippocentaurus is sold. In these cases (which tend to crop up in textbooks rather than in court decisions) invalidity is the appropriate answer of a legal system (Rabel, Gesammelte Aufsatze, p. 47, who refers to an "' Obligationshindemis der hoheren Dumttiheit"). Along these lines, for instance, the Indian Contract Act declared an agreement to discover treasure by magic to be void (cf. Pollock, Principles of Contract (7th ed., 1902), p. 402). Also § 878, "l ABGB ("What is downright impossible fgeradezu unmoglich], cannot be the object of a valid contract") is usually interpreted as covering only these types of cases; this interpretation goes back to Ernst Rabel ("Zur Lehre von der Unmoglichkdt der Leistung nach Osterreichischem Recht (1911)", in: Gesammelte Aufsatze, vol. I, pp. 79 sqq.), but is in conflict with what the legislator intended to express with this rule (Wollschlager, Unmoglichkeitslehre, pp. 100 sq.). "Normal" objective initial impossibility (i.e., for instance, the object to be sold perished before conclusion of the contract) does not affect the validity of the transaction (arg. § 923 ABGB); thus, the positive interest may be claimed.

136Cf. e.g. Rabel. Gesammelte Aufsatze, vol. I. p. 68; Arp, Anfiingliche Unmoglichkeit, pp. 43 sqq., 167 sqq.

137(1910) 65 Seujferts Archiv, n. 160.

138In the case of generic obligations there is always merely subjective impossibility if the debtor does not possess any goods of the kind to be supplied (as long as goods of this kind still exist); cf. e.g. § 279 BGB ("If a debt described by class is owed, and so long as delivery of this class of object is possible, the debtor is responsible for his inability to deliver, even though no fault may be imputed to him"). In the present case, however, the debt was not described by class (1 000 boxes of new potatoes from the Canary Islands), but the 1 000 boxes aboard the Thekla Bohien were owed.

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void, but awarded damages for non-performance to the disappointed purchaser. Reason:

". . . in the sale of a cargo described as 'afloat' merchants take the contractual declaration of the vendor to be a warranty or the undertaking of a guarantee that the cargo has been loaded on the named vessel."13''

In the end, therefore, the real question seems to be which of the contracting parties should carry the risk of the possibility of performance; and this question can often be answered by a proper construction of the contract.140 English courts, unhampered by an "impossibilium nulla obligatio est" dogma, have often been able to achieve satisfactory results by looking to what the parties might have contemplated.141 Apart from that, it is often stated that a contract may be void if both parties believe that the contract is capable of being performed when this is not the case.142 The operative feature here, however, is common mistake, not initial impossibility per se.

III. ILLEGALITY 1.

The possible effects of illegality

(a) Subdivision of statutes according to their sanctio

Illegality is the second of the general grounds of invalidity referred to above. Broadly speaking, it can be described as a situation where either the conclusion or the content of a contract infringes a statutory prohibition. Illegality and (initial) impossibility have often been put on a par. Grotius' statement that by natural law man cannot bind himself to things which are impossible or unpermitted143 may serve as an example. Like impossibility, illegality in Roman law did, however, not always and necessarily render contractual transactions void. Whether or not an illegal transaction was effective depended, in the first place, on the sanctio of the statutory prohibition (a formal clause appended to the lex, in which, amongst other matters, the consequences of any infringement were determined);144 otherwise the question was resolved by way of interpretation. Throe different types of statutes were distinguished in this context: leges imperfectae, leges minus quam

139 Trans. Weir, in Zweigert/K6tz/Wt?ir, p. 161.

Utl But cf. Arp, Atifangliche Utimoglichkeit, pp. 155 sqq. (who, however, also advocates a restriction of § 306 BGB).

141Cf. Zweigert/Kotz, p. 228 and Couturier v. Hastie (1856) 5 HLC 673, the leading case in this field of the law, which turned upon the construction of the contract. On this case, see F.S. Atiy ah," Couturier v. Hastie and the Sale of Non-Existent Goods", (1957) 73 LQR 340 sqq. (hut see now Atiyah, Essays, p. 250). For South African law cf. Christie, Contract, p. 82.

142e.g. Trcitel, Contract, p. 214.

143Cf. supra, p. 693 (note 116).

144Carlo Gioffredi, "La 'sanctio' della leggc e la 'perfectio' della norma giuridica", (1946) 2 Archivio penale 166 sqq., 174 sqq.;Jochen Bleicken, Lex publica (1975), pp. 217 sqq.

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perfectae and leges perfectae.145 Only acts performed in violation of leges perfectae were void. Leges minus quam perfectae threatened the violator with a penalty, but did not invalidate the act itself. Infringement of a lex imperfecta led neither to a penalty nor to invalidity.

(b) Leges minus quam perfectae

It is particularly the existence of the latter category that tends to surprise the modern observer. Was it at all sensible to enact leges imperfectae? What hope could a legislator realistically have that his directions would be followed if, essentially, they merely constituted an appeal to the good will of the people?146 In order to answer these questions, we must

first of all take account of the fact that the oldest lex perfecta of which we can be certain dates from 169 B.C.147 In the early days of Roman law

the validity of a transaction seems to have been judged only from the point of view of the required form. If the formalities were not complied with, the transaction was invariably and irremediably void; where, on the other hand, they had been observed, it was unquestionably valid. That statutory prohibitions could interfere with, and indeed completely invalidate, formal private acts was inconceivable to the lawyers and law-makers of the earlier Republic; it was an idea that required a refined capacity of abstraction and analysis.148 Thus, before approximately the middle of the second century, the Roman legislator was forced, if he wished to strengthen the efficacy of a statute, to sanction its violation by the imposition of a penalty. And, indeed, statutory prohibitions in the form of leges minus quam perfectae were the rule during this period. The lex Furia testamentaria (fixing the maximum amount of a legacy that a person was allowed to receive at one thousand asses)149 is one example;150 the various attempts to fight the taking of excessive interest by fixing certain "ceiling-rates"151 provide us with another. In both instances a person who had obtained more money than he was allowed to was liable to pay fourfold the value of the surplus (poena quadrupli). The lex Laetoria for the protection of minores viginti

145Cf. UE 1, 1 sq. (with additions by Cuiacius); also Macrobius, In somnium Scipionis, Lib. II, 17, 3 and Chorus, Handelen, pp. 24 sqq.

146Generally on the question of how effective Republican legislation was, cf. Bleicken,

op. cit, note 144, pp. 217 sqq.

147 It was the lex Voconia; cf. Kaser, Verbotsgesetze, pp. 20, 50 sqq.; Hans Ankum. "Verbotsgesetze und Ius Publicum", (1980) 97 ZSS 291; for a different view (lex Poetelia Papiria, 326 B.C.), see Fritz Sturm, (1982) 99 ZSS 432.

48 Giovanni Rotondi, Leges pubticae populi Rotnani (1912), pp. 155 sqq.; Kaser, Verbotsgesetze, pp. 16 sqq.; cf. also Wieacker, RR, pp. 286 sq.

149Certain close relatives were excepted.

150UE 1, 2. On the content and function of the lex Furia cf. Gai. II, 225; Uwc Wesel,

"Uber den Zusammcnhang der lex Furia, Voconia und Falddia", (1964) 81 ZSS 310 sqq.; Alan Watson, The Law of Succession in the Later Roman Republic (1971), pp. 163 sqq.; Kaser,

Verbotsgesetze, pp. 33 sqq.

151 Cf. supra, pp. 166 sqq.

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quinque annis was probably originally minus quam perfecta too:152 an actio poenalis could be brought against the person who had taken unfair advantage of the minor, but the transaction itself, according to the ius civile, was not invalid.

(c) Leges imperfectae

Leges imperfectae, even in the old days, were resorted to only in exceptional circumstances. Invalidity of the transaction was out of the question; but sometimes special policy considerations prompted the legislator not to impose a penalty either. The lex Cincia de donis et muneribus provides the best example of this strange kind of compromise. It prohibited donations exceeding a certain amount and was designed to prevent rich and influential members of the establishment from extracting excessive and not always voluntary "gifts" from (amongst others) their clientes.153 On the other hand, however, one did not want to embarrass the leading circles of society by exposing them to court proceedings and the concomitant publicity.154 Quieta non movere was the precept of the legislator, which was carried through even when it came to determining the legal consequences of an act infringing the provisions of the lex.155 A donation exceeding the limit was not invalid, and hence there could be no (enrichment) claim against the recipient of the gift. Where, however, the donor had so far merely promised to make the prohibited donation, he could not be sued by the promisee either; for the praetor, in his decision whether or not to grant an action, had to be guided by the fact that the promise had been made in violation of a statutory prohibition (albeit an "imperfect" one). A praetor who would have allowed an action under these circumstances would himself have been guilty of a violation of the legal order.156 Denegatio actionis was the appropriate course for him to take.157 Under the more modern formulary procedure the exceptio legis Cinciae became the standard way of bringing the illegality to judicial cognizance. Taking ius civile and ius honorarium together, transactions violating the lex Cincia therefore enjoyed only a limited kind of validity. This demonstrates that even leges imperfectae were not totally devoid of legal consequences. Whilst they did not lead to invalidity iure civili, mechanisms on another (the praetorian) level of the legal system158 were available to

152 Kaser, Verbotsgesetze, pp. 39 sqq.; idem, RPr I, pp. 276 sq.; Hans-Georg Knothe, Die Geschaftsfahiqkeit der Minderjahriqen in geschichtlicher Etitwicklunq (1983), pp. 53 sqq. (57)

153Cf. supra, p. 483.

154Kaser, Verbotsgesetze, p. 26.

155For details cf. supra, pp. 483 sq.

156Kaser, Verbotsgesetze, pp. 27 sq.; Behrends, Fraus legis, pp. 23 sq.

157The same applies, of course, to leges minus quam pcrfectae.

158Cf. generally Kaser, (1984) 101 ZSS 1 sqq.; more specifically with regard to illegal transactions, sec Behrends, Fraus legis, pp. 21 sqq.; Walter Selb, "Gedanken zur romischen

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prevent frustration of the legislator's policy. The granting of an exceptio, in particular, could lead to entirely satisfactory results. Thus, for instance, two famous senatus consulta, the s.c. Macedonianum and the s.c. Vellaeanum, were imperfecta:159 loans or security transactions contravening their provisions were not invalid, and in neither case did the creditor have to pay a penalty.160 By availing themselves of the exceptiones senatus consulti Macedoniani or Vellaeani, (former) sons in power and women did, however, effectively have the opportunity of invalidating the transaction.161

(d) Leges perfectae

The senatus consultum Macedonianum (enacted under Emperor Vespasian) was the last statutory prohibition of which we know that could be described as imperfectum. Since the time of the later Republic, leges perfectae had come to be accepted as a more modern and effective way of implementing the intentions of the legislator.162 Very soon they gained the ascendancy and it became more or less a matter of course that contracts infringing newly enacted prohibitions were invalid. Old leges imperfectae and minus quam perfectae remained in existence, but new ones were not added to their number. The leges Falcidia, Fufia Caninia, Aelia Sentia and Iulia de adulteriis were among the more important leges perfectae dating from the days of the late Republic and the early Principate. Post-classical legislation displayed an increasing tendency to interfere with the freedom of the individual and to regulate his private sphere. All statutory prohibitions were now invested with the sanction of invalidity; and as a result of this, the distinction between the three traditional categories fell away. These were the words of the Emperor Theodosius:163

"[Njullum . . . pactum, nullam conventionem, nullum contractum inter cos videri volumus subsecutum, qui contrahunt lege contrahere prohibente. Quod ad orancs etiam lcgum interprctationes tam veteres quam novellas trahi generalker imperarnus, ut legis latori, quod fieri non vult, tantum prohibuissc sufficiat, cetera quasi expressa ex legis liccat voluntate coiligere: hoc est ut ea quae lege fieri prohibentur, si fuerint facta, non solum inutilia, sed pro infectis ctiam habcantur, licet legis lator fieri prohibuerit tantum nee specialiter dixerit inutile esse debere quod factum est";

"lex imperfecta" und zu modernen Normvorstellungen in der Rechtsgescbichte", in:

Festschrift fur Heinz Hiibner (1984), pp. 253 sqq.

Though not, of course, leges in the narrow, technical sense.

16I) Cf. supra, pp. 145, 177 and A. Arthur Schiller, "Senatus Consulta in the Principate", (1958-59) 33 Tulane LR 500 sq.

161 Cf. e.g. Chorus, Handelen, pp. 35 sqq., who emphasizes that the difference between leges perfectae and imperfectae was of less practical consequence than might appear at first blush; further cf Selb, Festschrift Hiibner, pp. 253 sqq.

lb2 For details, see Kaser, Verbotsgesetze, pp. 50 sqq., 62 sqq.

163 Nov. Theod. 9 (dated 7th April 439); on this novella (the "Lex non dubium"), see Friedrich Endemann. Uber die civilrechtliche Wirkung der Verbotsgesetze nach gemeinem Rechte (1887), pp. 24 sqq.; Chorus, Handelen, pp. 42 sqq.

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