INTRODUCTION

The present chapter starts from the assumption that the Roman law rules on the invalidity of contractual agreements contra bonos mores constitute a first, historical, common core of the current legal formants concerning immoral contracts in a number of European countries. The central question it aims to answer is to what extent this first common core has influenced the current legal formants of the national laws specifically considered in this volume.

The first section briefly outlines the development of these Roman law rules from the 2nd century until Justinian's codification. It then acknowledges the substantive influence of the latter on the continental European civil codes on the one hand, and Scottish law on the other.

The second section, starting from the impact of Roman law on what Zweigert and Kötz call the “Romanist” and “German” legal families, takes position in the general comparative law debate on legal families. On this basis, the third section proposes a tailor-made taxonomy. It identifies five models of legal formants concerning the (in)validity of immoral contracts in Europe, corresponding to three groups of countries plus two individual mixed legal systems. For each model, the extent of the Roman law influence on the current legal formants is summarised. The models are discussed in a logical order, starting with the one most strongly influenced by Roman law, and ending with the one where such an influence can hardly be seen.

The last section concludes that Roman law can be considered a historical common core of almost all legal formants discussed in the national responses to the hypothetical cases in this volume, with one important exception: the Nordic countries.

IMMORAL AGREEMENTS AND CONDITIONS UNDER ROMAN LAW

The legal concept of immorality of a contractual agreement, which can be found in all continental European civil codes, stems from Roman law. The most ancient known sources mentioning this concept go back to the 2nd century Roman jurists Gaius and Julianus. These jurists formulate specific examples of agreements that do not create obligations because their object or purpose is contrary to good morals (contra bonos mores):

• - a mandate to steal something or insult somebody;

• - a stipulation to commit a murder or steal an object used for divine service; or

• - a stipulation of a penalty for failing to institute a certain person as heir.