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But this invalidity also exists, when the object of the insurance is one, which is contrary to the laws of the country of only one of the contracting parties, whether it be of the insurer or the insured; for though that party only, who enters into a contract against the law of his own country, acts directly illegally, yet the other party is obnoxious to the reproach of participating; and, consequently, neither of the parties can support an action against the other on such a contract. If the object of the insurance be a transgression of the law of the country of the insurer, and the insured brings an action against him to recover compensation for a loss, it is evident, that the courts of such country cannot entertain jurisdiction of a contract, which is forbidden by the laws of that country. The same consequence results also, when, for example, because the insurer has changed his place of residence, the action is instituted in a country, by the laws of which the contract is not forbidden; for the validity of an obligation is to be judged of according to the laws, which are applicable to it at the time of its origin.' If, on the other hand, the insurer brings an action against the insured for a recovery of the premium, though, according to the laws of the country of the latter the contract may subsist, it is a sufficient answer to the action, that the contract is invalid by the laws of the country of the plaintiff; and the replication of the latter, that the defendant is a participator in a forbidden act, may be repelled by the rejoinder, that in such a case the possessor's right is the stronger.” It is the same, when the contract is entered into in contravention of the laws of the country of the insured. Some of the old jurists go still further, and maintain that the insurance is invalid, when both the contracting parties are foreigners." Pothier founds this view upon the following reasoning. Those, who carry on trade in any country, he says, are, by the law of nations and by natural law, subject to the laws of that country. Every sovereign has power and jurisdiction over whatever is done within his dominions; and, consequently, he has the right to give laws for the carrying on of trade therein, which laws are binding on all persons engaged in such trade, whether they are foreigners or subjects. We cannot deny the right of the sovereign to retain certain commodities within his own kingdom, and to forbid their exportation; an exportation of such goods is consequently an injury to his right to retain them; and is therefore a contravention of the law. Besides, even though a French citizen were not subject to the Spanish laws, in respect to the trade which he carries on in Spain, (which, however, is not true), it cannot be denied, that the Spaniards whom he is obliged to employ are subject to those laws; and that the latter act contrary thereto, when they aid in the exportation of goods, of which the laws forbid the exportation. Now, as a contraband trade with Spain is not possible, without engaging Spanish subjects in a transgression of the law, the smuggler participates in such transgression; for whoever engages another to commit an illegal act is himself guilty of an illegal act. Such trade is consequently forbidden, and contrary to good faith; and, for that reason, an insurance which refers to it is invalid. But far the greater number of jurists regard an insurance against the laws of a foreign state as valid, on the ground, that foreigners are not subject to those laws.” The laws of particular states, for the most part, consider contraband trade with foreign countries as not illegal, and an insurance which refers thereto as valid.' The old doctrine has been revived in modern times by Pfeiffer,” in reference to a case, which naturally comes under the idea of insurance. This author refers to the common principle, that all contracts infected with moral turpitude are invalid,” and asserts, that to this class those contracts also belong, the purpose of which is a transgression of the laws of a foreign country. The transgression of foreign revenue laws certainly does not partake of the nature of a common crime, but yet it may be said, that a contract, whose essential motive and purpose consist in withdrawing from a third person, whether a private person or a state, whether the state of the parties or a foreign state, that, to which such person, according to the law of the place, where the contract is to be performed, or the act which constitutes the same is to be done, has a perfect right, contains an injury to morals, on account of which such contract is invalid, as a factum turpe, according to the common law. The decision of this controversy is very properly made by Pfeiffer to depend upon the question, whether there is any injury to morals in the transgression of foreign laws; and, consequently, whether contracts entered into for the purpose of such transgression belong to the class of those, which the common law considers as pacta turpia and invalid. The expression, that an act is against good manners (contra, adversus bonos mores), which occurs so frequently in the Roman law, has a double signification.
* Weber, Natural Obligation, (in German) $ 62; Eichborn, Introduction (in German) $ 36.
* L. 8, D. de cond. ob turp. caus. (12, 15): Porro autem si et dantis et accipientis turpis causa sit, possessorem potiorem esse. L. 2, C. eod. (4, 7).
* Pothier, Traité d'Assurance, n. 58; 1 Marshall on Insurance, 51, 53.
* Valin, Comm. sur l'ordon. marit art. 49, tit. d’Assur.; Emerigon, Traité d'Assur. ch. 8, sect. 5; Benecke, part 1, pp. 34, 35; Mittermaier, German Private Law (in German) $ 212; Eichborn, § 114; Pohls, Treatise on Marine Assurance (in German), part 1, pp. 70, 71; Maurenbrecher, German Private Law, § 391.
* England: Park, ch. 13; 1 Marshall, 53; France: Emerigon, as above cited, and in the new Valin, pp. 399, 400; Hamburg: Benecke, p. 35.
* Practical Deductions (in German) book 3, n. 4.
* L. 26, D. de verb. obl. (45,1); l. 185, D. de reg.jur. (50, 17); l. 6, C. de
pactis, (2, 3).
1. In the broad and proper sense, every action is understood to be against good manners, which is repugnant to the general principles of morality. This idea is most clearly expressed in the law 15, de cond, instit. (28, 7,): nam qua, facta ladunt pietatem, eristimationem, verecundiam nostram, et ut generaliter diverim, contra bonos mores fiunt, nec facere nos posse, credendum est. As particular examples, the law 9, eod, mentions the following: when one does not redeem his father from captivity; or neglects to furnish his parents or patron with necessary support. So, an agreement, that the husband shall not be entitled to the beneficium competentiae, is contrary to good manners, because it is injurious to the respect, which the wife ought to entertain towards her husband; " so a contract, that one will not prosecute the other contracting party, on account of an offence which is yet to be committed, because the validity of such a contract would excite to crime.”
Every thing, which is repugnant to good manners, is also morally wrong, (turpe, inhonestum), and thence both these expressions are used as synonymous.” The opposite of these terms is honestum, which Brissonius very exactly defines as id, quod non modo licet, sed et virtuti et bonis moribus non adversatur, sed hoc amplius, quod decorum conveniens honorique congruum est.
The decision of the question, whether any thing is contrary to good manners, does not depend upon the views, which, among a certain people, or at a particular time, prevail in relation to the subject; but upon the immutable principles of a rational morality. Homestum igitur, says Cicero, fin. lib. ii, ch. 14, id intelligimus, quod tale est, ut detracta omni utilitate, sine ullis praemiis per se ipsum possit jure laudari, quod quale sit non tam definitione, qua usus sum, intelligi potest, quamquam aliquantum potest, quam communi omnium judicio, et optimus cujusque studiis atque factis. It is consequently wholly indifferent to the notion of what is repugnant to good manners, whether an act, which is condemned by these general principles of morals, is punishable by the laws of a particular state, or whether those laws consider it as merely invalid and of no effect. And even when the laws of a state permit an immoral act, and connect certain legal consequences with it, such act does not thereby lose anything of its moral turpitude." By the common law, for example, debts contracted in playing at games, which neither strengthen the body nor exercise the mind; and, by the laws of particular states, debts contracted in violation of prohibitions affecting certain classes of subjects, are invalid; but yet it is agreed, that he acts contra bonos mores, who takes advantage of such laws to defend himself against his creditor.” 2. In a narrow and improper sense, the Roman law regarded those actions as repugnant to good manners, which were only immoral according to the peculiar views of the Roman people, whether they were repugnant to the general
* L. 14, § 1, solut. matrim. (24, 3).
* L. 27, § 3, 4, de pact. (2,14); l. 1, § 7, depos. (16,3). See also 1. 1, § 1, de extraord. crim. (47, 11); l. 15, § 5, 20, 38, de injur. (47, 10).
* L. 134, pr. de verb. oblig. (45, 1):—respondit, ex stipulatione, quae proreponetur, cum non secundum bonos mores interposita sit, agenti exceptionem doli mali obstaturam, quia inhonestum visum est, vinculo poenae matrimonia obstringi, sive futura, sive jam contracta. L. 9, § 1, de lib. et posthum. (28. 3); l. 112, § 3, de leg. I, (30) Tit. D. de cond, ob turp. caus. (12, 5); Tit. C. eod. (4, 7).
" Non omne quod licet, honestum est; l. 144, de reg.jur. (50, 17): Semper in conjunctionibus non solum quid liceat, considerandum est, sed et quid honestum sit; 1.42, de rit. nupt. (23, 2).
* The contract of play, though entered into against the prohibition of the civil law, being a contract, which does not contain any injustice in itself, ought not the less to oblige the loser to perform his engagement, and to pay the sum which he loses. I incline to think, that those who lose considerable sums, by playing at prohibited games, upon their word of honor, are obliged in conscience to pay such losses. Pothier, Traité du contr. du Jeu, n. 55 and 58.