understanding the law in a historical and comparative perspective 235 property. That legacy was held to be invalid because it had been made under the influence of metus reverentialis, reverential fear. The testatrix’s will, under these circumstances, could not be said to have been free. Classical Roman law would probably have been less lenient, for it attributed an invalidating effect only to a fear that would have shaken a ‘vir constantissimus’.7 However, the Roman sources also contain one fragment – probably it was interpolated – which does appear to take account of metus reverentialis and which thus enabled mediaeval and early modern jurists, inspired by Christian humanitas, to establish a general doctrine along these lines.8 Reverential fear can also be relevant in the context of concluding a contract. English law thus recognizes the doctrine of undue influence, and it is not unlikely that the Court of Chancery, in developing that doctrine, drew some inspiration from the French author Robert-Joseph Pothier (1699–1772).9 Today, rescission on account of undue influence applies in cases where a husband persuades a family member (especially his wife) to stand surety for bank debts far exceeding the family member’s ability to pay.10 This type of case has caused problems in other jurisdictions too. In Germany, a decision of the Federal Constitutional Court was necessary to induce the Federal Supreme Court to police such contracts.11 Modern German law does not recognize a doctrine of undue influence, and metus reverentialis has long fallen into oblivion. The Federal Supreme Court thus had to resort to § 138 (1) BGB, the general provision under which legal transactions contra bonos mores are invalid. It is widely ac7 This is a Byzantine generalization of the classical case law. For details, see Arthur Hartkamp, Der Zwang im Privatrecht (Amsterdam: Hakkert, 1971), 27–9. 8 Ulp. D. 44, 5, 1, 6. For all details, see Jacques du Plessis and Reinhard Zimmermann, ‘The Relevance of Reverence: Undue Influence Civilian Style’, Maastricht Journal of European& Comparative Law10 (2003), 345–79. 9 See Gerhard Lubbe, ‘Voidable Contracts’, in Reinhard Zimmermann & Daniel Visser (eds.), Southern Cross: Civil Law and Common Law in South Africa(Oxford: Clarendon, 1996), 294–302. 10 Barclays Bank plc v O’Brien[1994] 1 AC180. 11 BVerfGE89, 214.The story is told in Mathias Habersack & Reinhard Zimmermann, ‘Legal Change in a Codified System: Recent Developments in German Suretyship Law’, Edinburgh Law Review3 (1999), 272–93.
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