Legal Definitions - secundum aequum et bonum

The Latin phrase secundum aequum et bonum translates to "according to what is just and good." It refers to a principle where a decision is made based on general considerations of fairness, equity, and what is morally right, rather than strictly adhering to formal legal rules, statutes, or precedents. It allows a decision-maker to apply common sense and principles of natural justice to achieve a fair outcome.

Here are some examples illustrating this concept:

• International Arbitration: Imagine two neighboring countries have a dispute over a shared natural resource, like a river, and there is no specific treaty or established international law that directly addresses their particular conflict. If they agree to submit their dispute to an international arbitration tribunal and empower the tribunal to decide the matter secundum aequum et bonum, the arbitrators would not be bound by strict legal codes. Instead, they would consider principles of fairness, equitable use, historical practice, and what constitutes a reasonable and just distribution of the resource to reach a resolution that both nations perceive as fair and balanced.

  This illustrates secundum aequum et bonum because the decision is guided by broad principles of justice and fairness, rather than a rigid application of existing legal texts, to resolve a complex issue where formal law might be incomplete or lead to an inequitable result.

• Commercial Mediation: Consider a disagreement between a small business owner and a large supplier over a delivery delay that caused the business owner to lose a significant client. While the supplier's contract might contain clauses limiting their liability, both parties agree to enter mediation with the understanding that the mediator should help them find a resolution secundum aequum et bonum. The mediator would then encourage a settlement that considers the actual harm suffered by the business owner, the supplier's capacity to mitigate, and what feels like a fair compensation, even if a strict reading of the contract might offer less or no recourse. The focus shifts from legal technicalities to achieving a just and reasonable outcome for both parties.

  Here, the principle allows for a flexible, fair resolution that goes beyond the strict letter of the contract, aiming for a mutually acceptable and just outcome based on the specifics of the situation and the spirit of their commercial relationship.

• Contractual Interpretation in Equity: Suppose a homeowner hires a contractor to build a unique garden feature, and the contract specifies a very particular type of rare stone. Due to unforeseen global supply chain issues, that exact stone becomes impossible to acquire. A strict interpretation of the contract would mean the contractor cannot fulfill their obligation, potentially leading to a breach. However, if a court or an agreed-upon expert were to interpret the contract secundum aequum et bonum, they might allow the contractor to use a very similar, equally high-quality stone that is readily available, provided it achieves the aesthetic and functional intent of the original design. This decision would be based on what is fair and reasonable given the circumstances, rather than strictly enforcing an impossible term.

  This example demonstrates the application of secundum aequum et bonum by allowing for a practical and just solution when strict adherence to a contractual term becomes unreasonable or impossible, ensuring the spirit of the agreement is upheld through fairness.