Restriction of the freedom of will of individuals by moral norms

ანოტაცია

Moral norms date back centuries. In a specific time and space, morality took a higher place than codified legal norms. The devel- opment of law has led to the fact that today codified acts have a predominant place in legal proceedings, although due to the im- portant place of moral rules in society, the legislator did not deny its importance in the Civil Code of Georgia. On the one hand, taking into account the role of morality in so- ciety and reinforcing its importance with the Civil Code is a posi- tive fact, however, on the other hand, it is important to assess how correct it is to reinforce it in its current form, as well as how much power it gives the court in order to limit the fate of transactions con- cluded within the autonomy of the will of individuals. While the consideration of moral rules should respond to the demands of society, its abstract and unclear content creates the possibility of excessively restricting the freedom of individuals when concluding a contract with the norms of morality unknown to a person. By discussing the selected issue, it becomes possible to analyze and evaluate the challenges and problems in Georgian litigation. The question to be discussed is: is the strengthening of morality a positive factor, or it can negatively affect the fate of the deals made by the autonomy of the will of individuals and limit their freedom.

Keywords: Morality, autonomy of the will of persons, problems

Introduction

Certain transactions cannot be conducted in legal proceedings, therefore, we find them under “impermissible transactions”. The list of such includes immoral transactions made against morality. It is interesting - what is the importance of morality in modern law? Is it possible or not, and what role can it play in transactions concluded as a result of the private autonomy of individuals? What attitudes do we find regarding immoral transactions in court practice and others?

When we talk about morality, it is important to note its non-concrete meaning and the fact that this word is an abstract concept. Since the concept of morality does not have a specific meaning, it is defined in law as a “generally accepted standard of behaviour”. It should be noted that even this definition does not allow for a uniform perception; therefore, practicing lawyers often have to consider various factors and be guided by the features that characterize morality so that the decision made during a dispute is equivalent to justice.

Morality is a phenomenon that existed in society even before the creation of the first positive law. Therefore, the legislator paid attention to it hundreds of years ago and gave it a place in the relations of subjects of private law.

Even in the Roman Empire, one of the criteria for the validity of the contract was moral norms, therefore, the contract should not be against morality.[1] Pacta contra bonos mores is how the Romans referred to transactions made against morals.[2] It is widely known that the French Civil Code first reinforced the concept of immoral transactions among modern codifications. “In particular, in articles 6 and 1133, he strengthened the public order (ordre public) next to bonne moeur (good morals)”.[3]

This does not mean that no norms considered this immoral behaviour contrary to the law and established societal views. In this regard, it is interesting to know what was the criterion of immorality in the history of Georgian law. It should be noted that in ancient Georgian law, in terms of immorality, such an abstract norm as Article 54 of the Civil Code is not fixed. Articles of a more casuistic nature can be found in various legal monuments, where a specific action based on non-compliance with moral laws is considered immoral. For example, Article 1 of the “Law Established by the Catholicos and Dignitary Bishops of Kartli and Abkhazia” (Catholicos’ Law) considers the sale of captives as entirely immoral, against the law, and reprehensible. Also, we find prohibitive norms for setting a very high interest on the loan because it was considered against the law - Articles 92, 93 and 94 of the “Beka-Agbugha Law”, Articles 116, 117, 118, 119 of the “Vakhtang Law Book” and others. Therefore, it is clear that legislators analyzed the “cooperation” of morality and law in ancient Georgian law, and it is not only a result of the reception of European law in modern Georgian private law.

As is known, the strengthening of morality in Article 54 of the Civil Code took place after the separation of Georgia from the Soviet Union. It should be noted that the Code of Civil Law of the SSR of Georgia did not strengthen morality in the abstract character it has in today’s Code. Article 48 of the Civil Law Code of the SSR of Georgia referred only to the invalidity of transactions inconsistent with the law in general and not to public order or moral norms. Accordingly, the invalidity of transactions inconsistent with the norms of morality is still a new achievement for the Civil Code of Georgia; therefore, each natural or legal person must accept, even negative consequences, which follow this norm.

So, it is clear that moral regulations play an essential role in different times and spaces. Based on history, in this regard, the Georgian people “take an advanced place”.

Due to the special role of morality in Georgian society, there was a need to reinforce it in the Civil Code of Georgia, which the legislator ensured in Article 54 of the Civil Code. This action positively changed private law subjects, who were prevented from fulfilling/satisfying the demands arising from the transaction of immoral obligation and immoral content. However, it is necessary to reassess the subsequent processes that followed this action, to analyze the negative results as well as the good ones, and to make a final decision on whether the abstract strengthening of moral rules in Article 54 of the Civil Code represents the pride of Georgian legal development, or it is necessary to refine this norm and make it more suitable in response to the problems that private law subjects have in legal relations.

1. Characteristics of morality

For a judge to correctly resolve the issue and make a relevant decision as to whether a transaction is immoral, they must know the various characteristics inherent in morality. The formation of morality is influenced by various factors such as customs, value and tradition. Indeed, morality is not a one-time phenomenon that is heteronomously and eternally created. It was formed over time. Its change depends on time, along with the moral perceptions that are also changing - what was immoral in the past cannot be fully considered as such today. For example, decades ago in the United States of America, an African American could not have breakfast and do other daily activities with a white person because their behaviour was perceived as immoral, although today, such a perception no longer exists. Moral perceptions cannot be changed instantly, so it can be said that morality is somewhat static.[4] Another characteristic of morality is that often immoral behaviour (except in the case of immoral transactions) is sanctioned by society rather than by relevant structures. All this is important to the practising lawyer, whose case may be connected with morality at any time. In the field of private law, there are transactions with an immoral basis, the victim of which is often a natural person/contractor who does not know that the obligation imposed on them is immoral and the Civil Code - Article 54 of the Civil Code - allows the invalidation of such a transaction. Thus, the judge needs to study the concept of morality to such a level that the party to the transaction in a specific case is freed from the obligation that goes beyond the scope of morality. For example, in one of the cases, the Supreme Court considered one of the provisions of the contract, which provided for the prohibition of pregnancy during the validity period of the labour contract, to be immoral/against morals.[5] In addition, various acts, including Article 21 of the Convention on “Protection of Human Rights and Fundamental Freedoms”, oblige the judge to know the existing moral rules and embody high moral qualities. Therefore, it is clear how vital morality is in today’s proceedings.

2. Law and morality

Law and morality coexist together. Some relationships in society cannot be regulated by law, although the rules of morality can. For example, normative acts will not confirm the rules of behaviour between children and parents in the family, and they will be regulated by moral laws (respect between children and parents, etc.). There are both differences and similarities between law and morality. “The norm of law regulates the external behaviour of people, while morality is more interested in the subjective will of a person and the motive of his behaviour”.[6] Legal ethical values found a place in the legal system, specifically in the value system of the constitution, but in private law, they found expression in the norms that invalidate immoral transactions.[7] Strengthening morality in the Civil Code of Georgia is important because morality and law fill their weaknesses. Subjects of Civil Law would find themselves in a precarious position if they had no way to escape immoral transactions. “The law compensates for the functional weaknesses of morality, which from the observer’s point of view often give cognition indeterminate and motivationally unstable results”.[8] Thus, it is clear that the relationship between morality and law is essential. This became the reason why morality was strengthened in the civil codes of Georgia, Germany, and other countries. Without the norms that protect a person from transactions made against good morals and customs, the civil code would be far away from excellence, human relations, and the individual himself because it would not be able to solve the negative situation in which the subject of civil law may find himself, in case of making an immoral transaction. It is important to have a strong connection between law and humans; law tries to analyze each existing relationship and provide a relevant solution (especially in the case of private law because subjects have private autonomy as a high degree of independence). The strengthening of morals in the Civil Code of Georgia indicates that Georgian litigation, private law, is focused on finding and establishing more connections with people, facilitating legal relations, and protecting them.

The general relationship between morality and law is a very interesting and arguable issue. In this regard, there are three main approaches - first, morality and law form one whole; Second, they are essentially different from each other, and third, law and morality are not the same, nor are they separate from each other.[9] The last opinion deserves attention, which is accurate because everyday relationships are regulated differently by law and morality, although the reinforcement of morality in the civil code in France and later in other countries indicates that morality and law are not separated from each other, although they do not create unity. In jurisprudence, there is a common opinion about the essential difference between morality and law. For example, Robert Paul Wolff argues that the law necessitates obedience, regardless of one’s personal beliefs, which conflicts with individual moral autonomy, requiring them to accept responsibility for their actions and act solely on their own decisions, according to the merits of their actions.[10] The opinion that morality and law are essentially different is not a result of rational cognition because the Civil Code of Georgia, Article 54, entitled: “Unlawful and immoral transactions”, shows that private law and morality “cooperate” in a way. According to philosopher and lawyer Ronald Dworkin, morality plays an essential role in legal thinking.[11] However, not only does morality play an essential role in legal thinking, but the law itself interferes with moral laws, a clear example of which is that law has become a means of transforming immoral relationships into moral ones - The European Court of Human Rights has recognized same-sex marriage as normal.[12]

Finally, it is correct to say that “morality is in law, and law is in morality”.[13] There is an essential connection between them, and they are tasked with eliminating each other’s weaknesses. In this regard, morality significantly supports private law because, with the help of Article 54 of the Civil Code, the Civil Code allows the invalidation of negative (immoral) transactions, each of which cannot be considered by the legislator in advance.

3.Morality – Internal or External Obligation?

It is important to clarify the obligatory nature of morality, the obligation that morality imposes on us and, in some cases, affects private relationships - where does it come from? Considering a transaction against morality is a rather complex issue because, unlike the law, its meaning is not found unambiguously, and determining the measure by which a judge should be guided in a particular case is difficult. The obligation accompanying morality is seen as an “intrinsic obligation” of which conscience appears as the determinant.[14] According to Kant’s opinion on this issue, legal obligation is external and ethical obligation is internal, meaning that ethics is its inner voice.[15] After analyzing morality, it is essential to draw a uniform conclusion about moral laws as intrinsic. “This law appears to be a property of our soul, and indeed, it is internal”.[16] It turns out that immorality, which can become the basis for invalidating a transaction, results from being guided by moral perceptions formed by individual cognition.

Most of the obligations come from the outside (statutory acts that establish binding rules for the behaviour to be followed), but there may not be a legal obligation, although something else prompts you to behave in a certain way. If no legal obligation forbids the subject to do a certain act, what can point to fulfilling the obligation? The answer to this must be found in morality, which controls from within, not from without, obliging a person at the moment of performing a behaviour. It should be noted that a sanction cannot always follow moral obligation. For example, if someone sees a person drowning in the sea and morality obliges them to help the drowning person, but they cannot help - in such a situation, they cannot be held accountable for not being able to assist if they explain that they do not know how to swim and were too afraid to help. Failure to fulfil a moral obligation (as opposed to a legal one) must leave a person with a feeling of dissatisfaction and inferiority, which speaks in favour of morality as an internal phenomenon.

4.Discussion of Article 54 of the Civil Code in terms of morality

According to Article 54 of the Civil Code, the third value that leads to the invalidity of a transaction is moral norms – „a transaction that violates the rules and prohibitions established by law, is against public order or moral norms is invalid“. Often, it is difficult to separate the three values mentioned in the law - rules and prohibitions established by the law, public order and moral norms, “violation of the law is often perceived as a manifestation of will against morality“.[17] In order to invalidate a transaction on the grounds of immorality, the very fact of concluding or the content of the transaction must violate the norms of morality[18] because it is often the case that the transaction, together with public order, also violates the norms of morality; and while invalidating a transaction, public order is preferred among them, because morality is a more evaluative concept, unlike public order.

Based on the general nature of Article 54 of the Civil Code, the main task is determining morality and what an immoral transaction means, which is the judge’s prerogative. Since each person’s way of communication and knowledge differs, judges have formulated varying definitions in Georgian private law.

The invalidity of the transaction does not depend on whether the contracting parties were aware that they were acting against morality.[19] This aspect does not matter because when entering into a transaction on an immoral basis analyzed by the parties to the transaction and without analysis, the results of the transaction are the same, and violation of legal interests is possible in both cases. In addition, the subject of civil law cannot take into account in advance all the moral rules that can decide the fate of their legal relationship.

The strengthening of morality under Article 54 of the Civil Code is a welcome fact. In its absence, private law could not solve such problems that may arise in the daily life of the subjects of the law. Private law establishes stronger connections with individuals by implementing morality in the civil code, accounting for them as the primary value and considering the established rules in society. Thus, it can be said that Article 54 brought a lot of good to the subject of private law (in terms of morality), but nevertheless, it demanded certain negative concessions from the natural/legal person because otherwise, it would not be possible to implement the norm in legal proceedings and bring positive results. It is important to reassess the negative factors caused by strengthening morality in Article 54 of the Civil Code.

5.Negative consequences caused by strengthening the rules of morality in the Civil Code of Georgia

5.1. The conflict between morality and the private autonomy of individuals

An important value of civil law is private autonomy, which, when concluding a transaction, gives the parties freedom in the form of the transaction (unless otherwise established by law) and its content. It is an active aspect for legal entities, as it facilitates using such an institution as a transaction. Nevertheless, Article 54 of the Civil Code serves to limit private autonomy,[20] as it somehow calls into question the validity of the transaction and, in the presence of relevant (including immoral) grounds, leads to the invalidity of a freely entered-into transaction.

As already mentioned, conscience is a determinant of moral obligation. If moral norms are formed individually by each person (albeit influenced by external factors), a question arises when two parties with their moral obligations are involved in a case. In such a scenario, the judge, who has also formed their own internal moral rules, must decide which perception of morality to follow. Of any party or his own? so that the decision made by him is fair and not biased. It is as if a hopeless situation is created, but it is easy to find a solution for the following reason – “human ethics are formed again in the coexistence of people”.[21] And since our ethical (moral) norms are formed in coexistence with other people, i.e. this coexistence has an impact on the formation of the moral laws of each individual, and as a result, one common public ethics, limited in time and space, is created, which is guided/should be guided by the judge during the proceedings. “It was not the general and abstract morality that was recognized, but the “prevailing morality“ in a specific society“.[22] However, there must be an exception to this approach, and a middle ground must be reconciled because otherwise, the law will appear as a legalization of injustice.

This interim must be of the following kind because conscience is a personal matter, and in private law, individuals are granted private autonomy to act according to their own conscience. However, what may be acceptable to both parties involved in a transaction may not necessarily be acceptable to society. This is why it is important to find a balance between individual autonomy and societal morality. So, a transaction can be invalidated due to immorality regardless of both parties’ views, knowledge, and will. It should not be disputed that putting the contractors in such a situation is a gross violation of their right, in particular, to determine the content and form of the transaction freely. This is one of the negative effects of the approval of the rules of morality in Article 54 of the Civil Code, and it is in this direction that attention should be focused, therefore, the question should be asked whether or not the general rule of conduct established in society (morality) have a negative impact on the fate of a transaction based on the private autonomy of individuals? Proceedings should develop so that if the parties to the transaction do not have a problem with the consequences of the transaction made against moral rules and this agreement does not harm other third parties, the opinion established in the society should not affect the legal relationship between the contractors. “The immorality of the motive of the transaction may become the basis for considering the whole transaction as immoral, for example, leaving property to a lover under the condition that they will not leave the testator alone during their lifetime”.[23] In this case, why should the law interfere with a person’s right to dispose of his property freely? If both the testator and the loved one are willing/is in their interest to exchange for the benefits that the transaction brings, conclude a contract of such content that does not harm the third party. Thus, case law in this regard should not be shared. In the conflict between moral rules and private autonomy, the complete disregard of the latter is not the result of rational cognition and should simply be considered as an evil interference in the rights of others.

5.2. Problems caused by the definition of morality in Article 54 of the Civil Code of Georgia

The fact that the word - immorality - does not have a uniform meaning causes certain problems, therefore, in private law, a significant role is assigned to the definition of these concepts by the judge, because it may affect the legal relationship of the subjects of civil turnover. The definition of morality from the judge’s side is a very responsible and problematic matter, “it is the most difficult to take a position on a contract with a reservation against morality“.[24] It is important that the interpretation is done in such a way and, accordingly, that the decision is made in such a way that the subject of private law, in this case, the contractor, will not feel a sense of objective injustice.

According to the explanation of the Supreme Court of Georgia, along with the law, the existence of law and order in a legal state is determined by the standard of moral behaviour. Therefore, despite the principle of private autonomy and free contracting in private law, a transaction contrary to the “generally accepted standard of conduct” is considered immoral and subject to the legal consequences of invalidity.[25] Thus, in legal relations, it is important for subjects of private law to take into account moral values so that the contract concluded by them is not invalidated; however, how logical it is to strengthen such an abstract norm in the Civil Code, such as Article 54, based on which even the lawyer himself cannot make a concrete opinion (to say nothing about a person of another profession). This is due to the need to clarify the norm and the fact that the role of judges in this matter is essential. There are many judges, so it is difficult to determine which of them should be interpreted, while there are often different interpretations by judges of different instances.

According to German jurisprudence, a transaction violates moral norms when disregarding the “standard of general justice and reasonable perceptions”.[26] In this definition, the word justice plays an important role. It is worth noting that when talking about a “generally accepted standard of conduct”, the given definition allows us to consider something generally recognized as a standard of conduct, although it is not just. These definitions put the subjects of private law in a vulnerable and uncertain position because, first, the existing definition in German judicial practice includes general justice, which also does not represent a concept with a specific meaning. Therefore, when deciding the case, this “general justice” gives the judge more freedom and an opportunity to use his perception of justice (especially since judges are defenders of justice). As a result, the subject of relations existing within the framework of private law may become a victim of the judge’s subjective interpretation. There is no guarantee of protection from this negative situation. Also, such results are understood by the definition – “generally accepted standard of conduct”- allowing the judge to make an arbitrary decision because the given definition needs the definition itself. All of this becomes even more acute when the judge who decides the fate of the transaction concluded by the subjects of civil turnover (according to the criterion of immorality) may be influenced by various political forces, which can unfairly decide the fate of the legal relationship (transaction) of a particular person. The fact that the fate of the transaction really depends on the judge is indicated by the different courts’ interpretations. According to the Tbilisi city courts, “a transaction is contrary to the norms of morality when it essentially violates the interests of one of the parties and puts it in unequal conditions... the immoral character of the benefits and the creditor's desire to get the maximum benefit from the concluded contract must be distinguished from each other”,[27] and according to the Tbilisi Court of Appeal, an immoral transaction “contradicts the principle of social justice, placing the contracting party in an inappropriately difficult position”.[28] The above discussion is another proof of the problems caused by the unspecified nature of morality in Article 54 of the Civil Code.

The strengthening of the provision that needs clarification in the Civil Code of Georgia, in the form of Article 54, violates the principle of “legal security”, which implies the following: an individual must know in advance what the law requires of him; How to act to comply with the provision of the law. It is logical for a person not to know how the judge interprets the word morality and, accordingly, what will be considered immoral. At the same time, each person has an individual manner of speaking. Therefore, judges’ interpretations will vary according to individual/different judges, which is also a hindering factor in understanding the content of the provision.

Accordingly, it should be considered beyond the scope of justice to establish such a provision for private law subjects, the normative nature of which cannot be understood even close to exact. The purpose of publicity of the Civil Code and, therefore, Article 54 is to prevent the consequences of an immoral transaction, although this function cannot be successfully fulfilled by a provision whose content is unclear not only for contractors but also for judges.

5.3. Definition as a choice between legal values

In legal literature, the measure of immorality can be various things. For example, for representatives of natural law, non-equivalence of performance and reciprocal performance is considered a criterion of immorality.[29] The disproportionality of the obligations of the parties is the basis for the invalidity of the transaction due to immorality in many countries, as they are, in most cases, entered into by the inability of one of the parties to make a reasonable judgment, a problematic situation, a significant weakness of will, etc. The Supreme Court of Georgia, in this matter, did not take into account the conclusion of the Court of Appeals that “it is enough that there is a disproportion between the obligations assumed by the parties to the contract” in order to consider the transaction immoral because according to the Supreme Court, it would prevent the stability and normal development of civil turnover.[30] According to this definition of the Supreme Court of Georgia, justice not only approaches and serves but also goes beyond a human, reality in a society because what can be more immoral than taking advantage of someone’s inability to make reasonable judgments, a problematic situation (because only with a person in such a situation can a transaction be concluded, which will impose on him an objectively disproportionate obligation, despite the weakness of his will) and enter into a transaction with desired results? Section 2 of Article 138 of the German Civil Code directly states: “In particular, a transaction is invalid in which a person, due to the serious condition, inexperience, lack of reasonable judgment or significant weakness of will of another person, forces the latter to promise him or a third person a property benefit in exchange for the performance of an obligation or performance that is clearly disproportionate to the performance of the obligation”. It turns out that the Supreme Court of Georgia did not consider the experience of German private law in this matter. It is not a negative fact that the content of any provision of the German Civil Code is not shared in the process of Georgian litigation; however, it is negative that the court deemed it legitimate to benefit from the weakness of others through a transaction. And what obligation does the court have except to protect each citizen from negative legal consequences, especially if this happened unknowingly (because of inability) to the weaker party? In this case, the court should take into account whether the transaction was concluded with a significant weakness of the will of the “weaker party” or not. If the contractor clearly expressed their will, which had no weakness, and there are no other reasons that indicate one of the parties taking advantage of the weakness of the other party, which is really immoral in society, disproportionality should not really become a criterion of immorality and, therefore, the basis for invalidating the transaction. In other cases, the judge leaves the private law subject unfavourable. Judicial practice should prioritize individuals as the primary goal of law-making over other values. The explanation that the invalidation of the transaction in the case of an apparent disproportion of obligations between the parties to the contract will prevent the stability of the civil turnover indicates that the value of a civil turnover has more importance than the subject of private law. The establishment of such a precedent in Georgian law, especially by the Supreme Court, should be considered harmful because taking the contractor (for the sake of whose well-being morality was strengthened in Article 54 of the Civil Code) out of a difficult situation by taking advantage of their lack of reasonable judgment is a more just act than sacrificing them to ensure the stability of civil turnover, leaving them in a problematic situation, caused by the other side’s seditious behaviour. Invalidating a transaction should be based on the interests of the subject of civil law, not the proceedings’ interests, using the moral norm.

6.Deviation from the generally accepted moral norms

When we talk about immoral transactions, we should consider the following: “An immoral transaction can harm the interests of both individuals and the state”.[31] In judicial practice, we find cases when the transaction concluded between the state and the subject of private law is immoral, i.e. the state itself agrees to enter into an immoral transaction. It is clear from judicial practice that the basis of litigation must always be morally justified. This principle acquires special importance when the standard of trust and good faith between the parties is high, and according to the definition of the Court of Cassation, in all relations where the state represents one of the parties, the degree of trust is relatively high.[32] This is because the state is a strong party in the transaction, and the other side of the transaction is compelled to depend on the trust and good faith of the state. When a transaction between the state and an individual or a legal entity is deemed immoral, we must consider not only the universal moral norms (established in a particular society) but also the specific moral norms that correspond to the contractor’s morality based on their status. This is necessary to determine the morality of the transaction between the parties involved. For example, according to the court’s definition, a gift expressed as “gratitude” to a state body can be considered invalid due to immorality.[33] This means that even in a relatively small society, moral norms may not contradict the generally accepted standard of behaviour but can still be the basis for invalidating a transaction if it does not align with the accepted morality in a particular social circle. In this case, a gift does not contradict the generally existing moral norms, and, on the contrary, it is considered pleasant behaviour, although such an action with the state is considered immoral. Giving morality developed in a particular relationship priority to the morals of society, even if they conflict with each other, is the right solution. Otherwise, it is impossible to avoid violating legal interests, mainly when the legally important transaction should be considered immoral and results in the violation of vital legal interests.[34] Thus, using generally accepted moral laws in certain legal relationships is unacceptable and leads to an incorrect case decision. At the same time, the immorality of the transaction depends on the status of the subjects, including the relationship between them. For example, if a student gives a gift to a school teacher, “a judge may consider it immoral not because gifting is generally immoral, but because it goes against the ethics of a teacher, making it impermissible”.[35] Accordingly, a person cannot always expect that generally accepted moral norms will govern the fate of his legal relationship. This creates the need for more prudence and makes the fate of the relationship between contractors more hesitant. In a particular field, if one person, even a student, sincerely wants to please another person, for example, a teacher, he must always expect that the norms of morality threaten the results of honest intentions.

Conclusion

Several conclusions can be drawn from the discussion in this paper:

1. a) The use of morality as a measure of the authenticity of a transaction has a centuries-old history, based on the fact that even in the Roman Empire, law and moral norms cooperated in this regard;


2. b) it is essential to know the concept and characteristics of morality at a high level so that in a specific case, the judge can save the transaction party from the obligation that goes beyond the scope of morality;


3. c) moral norms and law create a meaningful connection, complement and eliminate each other’s weaknesses;


4. d) Morality is internal. So, moral norms bind a person from within;


5. e) along with a lot of good things, the abstract nature of moral norms also brought negative results;


6. f) One of the negative facts is the excessive encroachment on the autonomy of the will; therefore, the proceedings should develop in the direction that if the parties involved in a transaction are not facing any issues with the results of the transaction, which goes against moral norms and if this transaction does not harm any third party, then the opinion of the society (moral norms) should not impact the legal outcome of the transaction which was concluded with the private autonomy of individuals;


7. g) due to the abstract nature of the norm, as well as due to the numerous judges who offer varying definitions, it is difficult for a person to determine in advance which of them’s definitions of morality should be taken into account;


8. h) It is crucial that individuals who have been taken advantage of by contractors and are unable to make reasonable judgments are not left in a difficult situation by the law at the expense of civil turnover stability, and finally;


9. i) It is clear from judicial practice that the definition of morality – “generally recognized standard of behaviour” (moral rules established in a specific society) is not always applicable, and the judge can reject it in the relationship between specific subjects, which means that a person in a specific situation cannot act according to the acceptable moral norms that are generally recognized. This rule negatively limits a person’s free choice.

Thus, as a conclusion, the following should be noted: strengthening moral norms in Article 54 of the Civil Code guarantees private law subjects that they will not have to fulfil an immoral obligation. However, this norm brought negative consequences in legal relations. Therefore, assessing whether the benefits are worth the cost of all the negatives is a matter of assessment. It would be positively evaluated if the legislator would consider the judicial definitions and regulate the features that characterize morality to a certain level. For example, that in the relations of persons with a specific status, the specific moral/ethical norms established among them take precedence over the generally accepted morality. With this, a more solid foundation would be created for the future transactions of the subjects of the law, and the peculiarities of morality would be more clearly defined for each person.

Bibliography

Normative Materials:

1. Civil Code of Georgia, 1997.


2. German Civil Code, 1900.


3. Civil Law Code of the Soviet Socialist Republic of Georgia, 1964.


4. Convention for the Protection of Human Rights and Fundamental Freedoms, 1950.

Scientific Literature:

1. Gogelia G., (2005). Law, Authority and Morality in Modern Legal Positivism, Man and the Con­stitution, IV.


2. Zarandia T./Jugeli T., (2006). Moral Obligations in Civil Law, Justice, and Law, IV.


3. Zoidze B., (2005). Reception of European Private Law in Georgia, Tbilisi.


4. Zoidze B., (2013). An Attempt to Know the Practi­cal Existence of Law Mainly from the Perspective of Human Rights, Tbilisi.


5. Cropholer I., (2014). German Civil Code, Darjania T., Chechelashvili Z. (Translator), Chachanidze E., Darjania T., Totladze L. (ed.), 13^th edition, Tbilisi.


6. Metreveli V., (2009). Roman Law (fundamentals), Tbilisi.


7. Ghvinashvili G., (2019). Forced Transaction in Ju­dicial Practice and its Separation from Immoral Transactions, Tbilisi, Master’s thesis, available <https://openscience.ge/bitstream/1/1028/1/ samagistro%20gviniashvili.pdf>


8. Chanturia L., (2011). General Part of Civil Law, Tbi­lisi.


9. Chanturia L., (2017). Commentary on the Civ­il Code, Book I, General Provisions of the Civil Code, Tbilisi.


10. Khubua G., (2015). Theory of Law, Tbilisi.


11. Jorbenadze S., Akhvlediani Z., Zoidze B., Ninidze T., Chanturia L., (2002). Commentary on the Civil Code of Georgia, book one, Tbilisi.


12. Jorbenadze S., (2011). Error in Bargaining, Par­allel to Other Legal Institutions, Law Journal, II.


13. Jorbenadze S., (2016). The Scope of Freedom of Contract in Civil Law, Tbilisi, Dissertation for the Academic Degree of Doctor of Laws, available at <http://press.tsu.ge/data/image_db_innova/ disertaciebi_samartali/sergi_jorbenadze.pdf>


14. Moka-Mubelo W., (2015). Reconciling Law and Morality in Human Rights Discourse: Beyond the Habermasian Account of Human Rights, Dis­sertation, Boston College.


15. Raz J., (2003). About Morality and the Nature of Law, the American Journal of Jurisprudence, I.

Court Decisions:

1. Decision No. 2/13966-12 of Tbilisi City Court of February 5, 2013.


2. Decision No. 2b/4123-12 of the Tbilisi Court of Appeal dated February 6, 2013.


3. Judgment No. 2b/4686-13 of the Tbilisi Court of Appeal dated April 15, 2014.


4. Ruling of the Supreme Court of Georgia dated March 01, 2016, No. AS-15-15-2016.


5. Decision No. As-664-635-2016 of the Supreme Court of Georgia dated March 2, 2017.


6. Ruling of the Supreme Court of Georgia dated August 2, 2019, No. AS-33-33-2018.

Footnotes

[1] Metreveli V., (2009). Roman Law (fundamentals), Tbilisi, p. 72.

[2] Chanturia L., (2011). General Part of Civil Law, Tbilisi, p. 354.

[3] Ibid., p. 354.

[4] Khubua G., (2015). Theory of Law, Tbilisi, p. 79.

[5] Chanturia L., (2011). General Part of Civil Law, Tbilisi, pp. 356–357.

[6] Khubua G., (2015). Theory of Law, Tbilisi, p. 79.

[7] Cropholler I., (2014). German Civil Code, Educational Commentary, Tbilisi, p. 63.

[8] Moka-Mubelo W., (2015). Reconciling Law and Morality in Human Rights Discourse: Beyond the Habermasian Account of Human Rights, Dissertation, Boston College, p.130.

[9] Khubua G., (2015). Theory of Law, Tbilisi, p. 78.

[10] Raz J., (2003). About Morality and the Nature of Law, The American Journal of Jurispru­dence, I, p. 1.

[11] Gogelia G., (2005). Law, Authority and Morality in Modern Legal Positivism, Man and the Constitution, IV, p. 89.

[12] Zoidze B., (2005). Reception of European Private Law in Georgia, Tbilisi, p. 214.

[13] Ibid., 215.

[14] Ghvinashvili G., (2019). Forced Transaction in Court Practice and its Separation from Im­moral Transactions, Tbilisi, p. 56. Master’s thesis, available at <https://openscience.ge/ bitstream/1/1028/1/samagistro%20gviniashvili.pdf>

[15] Zoidze B., (2013). An Attempt to Recognize the Practical Existence of Law Mainly from the Point of View of Human Rights, Essays, Tbilisi, p. 23.

[16] Ibid., p. 204.

[17] Jorbenadze S., Akhvlediani Z., Zoidze B., Ninidze T., Chanturia L., (2002). Commentary on the Civil Code of Georgia, Book One, Tbilisi, p. 177.

[18] Ibid., p. 181.

[19] Ibid., p. 322.

[20] Chanturia L., (2017). Commentary on the Civil Code, Book I, General Provisions of the Civil Code, Tbilisi, p. 312.

[21] Ibid., p. 66.

[22] Chanturia L., (2011). General Part of Civil Law, Tbilisi, p. 354.

[23] Ibid., p. 321.

[24] Jorbenadze S., (2016). Scope of Freedom of Contract in Civil Law, Tbilisi, p. 96. Dissertation for the academic degree of Doctor of Laws, available at <http://press.tsu.ge/data/im­age_db_innova/disertaciebi_samartali/sergi_jorbenadze.pdf>

[25] Ruling of the Supreme Court of Georgia of March 01, 2016, No. AS-15-15-2016.

[26] Cropholer I., (2014). German Civil Code, Darjania T., Chechelashvili Z. (Translator), Chacha­nidze E., Totladze L. (ed.), 13^th edition, Tbilisi, p. 63.

[27] Decision No. 2/13966-12 of Tbilisi City Court of February 5, 2013.

[28] Decision No. 2b/4123-12 of the Tbilisi Court of Appeal dated February 6, 2013.

[29] Ghvinashvili G., Forced Transaction in Court Practice and its Separation from Immoral Transaction, Tbilisi, 2019, p. 59. Master’s thesis, available at <https://openscience.ge/bit­stream/1/1028/1/samagistro%20gviniashvili.pdf>

[30] Ruling of the Supreme Court of Georgia dated March 2, 2017, No. AS-664-635-2016.

[31] Jorbenadze S., Error in the Transaction, Parallel to other Legal Institutions, Journal of Law, II, 2011, p. 206.

[32] Ruling of the Supreme Court of Georgia dated August 2, 2019, No. AS-33-33-2018.

[33] Judgment of Tbilisi Court of Appeal No. 2b/4686-13 of April 15, 2014.

[34] Zarandia T./Jugeli T., Moral Obligations in Civil Law, Justice, and Law, IV, 2006, p. 77.

[35] Chanturia L., General Part of Civil Law, Tbilisi, 2011, p. 355.