3. Laws and lawyers are constantly dealing with the concept "cause." Without entering on this subject in detail, I shall merely call attention to the well-known fact that by cause is not meant, in law, a group of facts which in logic must necessarily bring about a certain occurrence; and conversely, that every occurrence that could not have happened without a certain prior occurrence is not necessarily, in law, a consequence of such prior occurrence. Whether a juridically relevant causal connection exists between two occurrences must be decided by the judge for each specific case, and in doing so he has at his disposal a broad zone within which he can move about almost at discretion. This zone grows even broader if he may consider as cause also a non-occurrence, such as an omission. In this manner it is possible to establish duties, or abolish them, of a kind that had never until then entered anybody's head.
4. The concept "causa" in the sense in which it is so very important in connection with legal transactions and rescissions, does not admit of exact definition, so far as its legal effect, not its mere formally logical meaning, is concerned . Probably nobody would undertake to enumerate exhaustively all the cases in which "condictio sine causa" (rescission for lack of consideration or other "causa") is permitted. The essence and principal function of this concept is formed by the tendency in law to maintain existing relations of economic power and to prevent unreasonable enrichment of one party at the expense of another. However, in the projection of this concept ethical and other considerations as well as economic ones are effective. For instance, if somebody, under the erroneous belief that the principle of the canon law "aut due aut dota" is still in force, has given a marriage portion to a female seduced by him, he will hardly succeed later on in an action for the recovery of the amount paid on the ground that it was "an unjust enrichment," and this is so although, according to a well-known rule, the fact that his mistake was a mistake of law would not of itself prevent him from recovering.
183 As for instance, in the last clause of section 25, Austrian Commercial Code.
184 Comp. supra, note 161. For reasons of space I refrain from discussing in detail the functions of safety-valve concepts like this and others. A few brief hints must suffice.
5. All systems of private law contain institutions and concepts the special purpose of which is to prevent contracts that are directly immoral, as well as various other legal relations. Such are, in the Roman law, "exceptio doli" or "turpis causa," in the Austrian Civil Code the conception of "unlawfulness" of a contract.185 The use of language such as this implies a conscious approximation to an ethical estimate. The new German Civil Code goes further in this direction than any other. There the entire "law of obligations" is dominated by the concept "good faith." The German Code even authorizes in express terms the modification of the results of strict legal reasoning by moral considerations. The famous section 826 gives an action against one who intentionally, although in the course of exercising a right, does damage to another in a manner offending against good morals.
185 The courts have progressed beyond the view, once maintained, that section 878 OBGB makes voidable unlawful contracts only.
6. Now I shall add to this list a little illustration taken from criminal law. Within the last few years it has happened frequently, according to the newspapers, that the courts have dismissed charges of stealing food, especially bread, by hungry persons. As this has not been reported as occurring in earlier years, it would seem that new considerations, originating in social reform tendencies, have found entrance into criminal practice. The gate through which they have found admission is in this case the safety-valve concept "necessity." A corresponding projection of this concept furnished the means of holding that hunger, a condition now considered more seriously than formerly, constituted a sufficient excuse for stealing a loaf of bread. Logically it would be quite plausible to extend this projection a little further, so as possibly to cover also the theft of a small sum of money in order to relieve one's necessities. The limitations of projection therefore are movable.