The Relevance of Reverence; Undue Influence Civilian Style

Publication Date01 December 2003
Date01 December 2003
DOI10.1177/1023263X0301000402
AuthorJ. du Plessis,R. Zimmermann
SubjectArticle
J. du Plessis
and
R. Zimmermann
10 MJ 4 (2003) 345
The Relevance of Reverence; Undue Influence Civilian
Style
Persons in positions of authority are able to engender feelings of reverence in
others. Such reverence, unfortunately, can lead to exploitation. For many
centuries, courts and legal writers have struggled to come to terms with this
problem. Reverence does not fit comfortably into the traditional niches of metus
(because it does not necessarily involve fear instilled by threats of harm) and
dolus (since inducing fear is not the same as deception). Yet, at times, it simply
cannot be ignored in assessing the validity of a contract. This article shows that
medieval and early modern civil lawyers re-interpreted the Roman concepts of
metus and dolus to provide relief to those whose contractual intention had been
severely and detrimentally distorted by feelings of reverence. However, from
about the 17th century onwards the inchoate civilian notion of undue influence
gradually withered away, and it was only in England that a more mature
doctrine of undue influence evolved.
The mixed legal systems of Scotland and South Africa, faced with insufficiently
developed rules of Roman-Scots and Roman-Dutch law, were bound to be
attracted by the English concept which they eventually decided to embrace. But
it was not a complete reception. Neither Scots nor South African law make use of
the presumptions of impropriety which characterize undue influence in English
law. Yet, the works of medieval and early modern lawyers reveal that the use of
presumptions is by no means alien to the civilian tradition, and that they can be
employed usefully to assist those who might otherwise find it difficult to prove
that they have been exposed to a kind of influence which, in all likelihood, has to
be characterized as ‘undue’. The position in English law merely reflects what in
Jacques du Plessis is Professor of Private law and Roman law at the University of Stellenbosch, South
Africa.
Reinhard Zimmermann is Director of the Max Planck Institute for Foreign Private and Private
International Law in Hamburg, Germany.
The Relevance of Reverence; Undue Influence Civilian Style
346 10 MJ 4 (2003)
civilian systems has always been regarded as the appropriate solution in cases
of contracts affected by metus.
The experiences in South Africa and Scotland also contain a lesson for the
broader comparative community, for they appear to confirm the wisdom of
accepting a notion of undue influence into a set of principles of European private
law.
§ 1. Introduction
Persons in positions of authority are able to engender feelings of reverence in others.
Such reverence, unfortunately, can lead to exploitation. Since it is one of the basic
tenets of the law of contract that contractual liability is based on consent, and that such
consent must be freely obtained, it is hardly surprizing that the effect of reverence on
the free formation of a person’s will to contract has, at times, been regarded as
problematic. Yet, reverence has not usually, as such, counted among the situations
where the will of a contracting party has come to be labelled ‘defective’ in the civilian
tradition. A declaration based on error may be regarded as defective as may be one
induced by fraud or fear. The type of situation most closely related to reverence is fear,
and the question, therefore, that has to be asked is whether feelings of reverence can be
sufficiently overpowering to justify application of the rules relating to fear; or, since the
term for fear in Roman law was metus, under which circumstances metus reverentialis
may be relevant in assessing the validity of a contract. Metus reverentialis can be of
many different shades. A classic example is that of the wife of a domineering husband
who does not dare to go against his will. But a person may also be induced to conclude
a contract because he does not want to displease a person, such as a priest or parent,
whom he reveres. Usually, reverence is based on a relationship of dependence.
One fact pattern, in particular, has acquired great significance today. German courts
have, again and again, been faced with the situation that a bank has asked impecunious
wives and children to stand surety for very large debts incurred by their husbands or
fathers. Similar cases have arisen in other jurisdictions. Nowhere have the courts found
it easy to grapple with this type of situation where a person in a relationship of
dependence undertakes an obligation that is potentially ruinous. Courts in Germany
have had recourse to a general provision in the BGB concerning the invalidity of
contracts contra bonos mores. English courts have resorted to the notion of undue
influence. Undue influence has also struck root in Scots and South African law, the two
most prominent mixed legal systems in the modern world that have remained
uncodified. Both of them had, originally, received the civilian law of metus. The present
contribution attempts to reflect, on a comparative basis, the experiences of Scots and
South African law in selecting rules originating in ostensibly different systems such as
the English common law and the continental ius commune. At the same time, it draws
attention to the concept of metus reverentialis as an intellectual bridge between the
systems.
Jacques du Plessis Reinhard Zimmermann
10 MJ 4 (2003) 347
§ 2. Roman Conservatism: Maluisse hoc videtur
A. METUS
‘Nihil consensui tam contrarium est ... quam vis atque metus’ – nothing is so opposed to
consent as force and fear: this is how Ulpian formulated, as far at least as bonae fidei
transactions based on consensus were concerned, what was obviously equitable.1 None
the less, the ius civile did not provide a satisfactory solution to the problem. ‘Si metu
coactus volui ... tamen coactus volui’ was the principle that we still find proclaimed by
a late classical jurist such as Paulus:2 even if I have formed my will under the force of
fear, I have still formed a legally relevant will. There was no general rule declaring
transactions concluded under the influence of force or fear invalid.3
This was hardly a satisfactory position. Thus, in the turbulent times of the late
Republic,4 we find the praetor intervening.5 This was the historical starting point for the
legal protection against coercion, as we find it laid down more fully in Hadrian’s
edictum perpetuum. ‘Quod metus causa gestum erit, ratum non habebo’, were the words
with which the respective title was introduced.6 What exactly did that entail? The key
term metus was specified by Gaius in the following manner:
Metum autem non vani hominis, sed qui merito et in homine
constantissimo cadat, ad hoc edictum pertinere dicemus.7
This very restrictive concept of metus is a typical reflection of the Roman attitude
towards ‘man’s central virtue’:8 constantia. A Roman citizen could normally be held
responsible for his actions and his declarations, and any attempt to get away from what
he had done or said was instinctively frowned upon. The typical vir constans was not
1. Ulp. D. 50, 17, 116 pr.
2. Paul. D. 4, 2, 21, 5; cf. also Cels. D. 23, 2, 22. On these texts, their possible philosophical background,
and their implications, see A.S. Hartkamp, Der Zwang im Privatrecht, (Verlag Adolf M. Hakkert,
1971), 84 ff., 124 ff.
3. On the contrary: stipulations (and other formal transactions) were usually valid: Inst. IV, 13, 1.
4. See A. W. Lintott, Violence in Republican Rome, (Oxford University Press, 1968); Reinhard
Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition, (Oxford
University Press, 1996), 651 f.
5. See Hartkamp, Der Zwang im Privatrecht, 245 ff.; Berthold Kupisch, In integrum restitutio und
vindicatio utilis bei Eigentumsübertragungen im klassischen römischen Recht, (Walter de Gruyter,
1974), 158 ff.
6. Ulp. D. 4, 2, 1. The meaning of the phrase metus causa has given rise to scholarly dispute: did the
praetor disapprove of acts which have been caused by fear; does he refer to what has been done with
the aim of causing fear; or did his veto cover all acquisitions which have been made as a consequence
of fear? For details and references, see Zimmermann, The Law of Obligations: Roman Foundations of
the Civilian Tradition, 654.
7. D. 4, 2, 6; cf. also Ulp. D. 4, 2, 7 pr.
8. Fritz Schulz, Principles of Roman Law, (Oxford University Press, 1936), 224.

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