Question V: On conditional contracts

NOTANDUM (to be noted), following D. Bonaventure, that a conditional contract requires some condition in order to exist. Now a condition may concern the past, the present, or the future; and again it may be honorable, or dishonorable, or necessary, or contingent.

IF the condition concerns a past event, or the present, it does not suspend consent, because the condition has already been fulfilled or not fulfilled, and it cannot be otherwise; as if you give me an estate, if I was in Rome last year. Or: I take you in marriage, if your Father is dead, or if you are a virgin. So the Holy Doctor, whom very many follow, as Sanchez has it lib. 5. de matrim. disput. 6. Rebell. lib. 2. quaest. 15. Therefore the contract is not suspended by the force of such a condition, as the Holy Doctor explains, and with him Sanchez lib. 8. de matrim. disput. 10. num. 4. et 5. and lib. 4. decal. disp. 23.

IF indeed the conditions are future and contingent, the contract is suspended until the condition is fulfilled, and then the contract brings a absolute obligation, and therefore a new consent of the contracting parties is not required. So it is held with many authorities adduced, as Sanchez disput. 8. de matrim. lib. 5. Azor 3. part. lib. 6. cap. 15. et p. p. lib. 11. cap. 7. quaest. 9. Navar. sum. Lat. cap. 2. numero 63. Innocent. in cap. 1. num. 4. et in cap. super eo, in fine.

IF indeed the conditions are necessary, they are not judged to suspend the contract, because those conditions are necessary, as if you should say: I take you in marriage, if the sun rises tomorrow. So D. Bonaventure, and with him Azor p. p. lib. 11. cap. 15. quaest. 9. Sanchez lib. 5. de matrim. disp. 5. num. 1. and lib. 4. Decal. cap. 23. Suarez Tom. 3. de relig. lib. 6. cap. 12. num. 16. Fagundez lib. 1. de contract. cap. 7. num. 6.

IF indeed the condition be naturally, or morally impossible, the Doctors hold different views.

FOR MANY say that such a condition vitiates the contract by the law itself. So Lessius lib. 2. cap. 18. dub. 15. num. 121. Azor p. p. lib. 11. cap. 15. quaest. 9. Sanchez tract. 1. decal. cap. 23. num. 8. Bonacina de contract. disp. 3. quaest. 1. puncto 4. num. 10. Vasquez de restis. c. 7. disp. 10. speaking of wills, and it is found in Leg. servo manumisso, ff. de condit. instit.

Others say that such a condition is judged as if not appended, and the contract stands. This seems to be the opinion of D. Bonaventure, for even concerning conditions that cannot be morally fulfilled, he says the conditions are to be judged as not added. This is the view of Philiarch. tract. 1. de offic. sacerd. part. 1. lib. 3. cap. 21. and others.

If indeed the condition be contrary to the substance of the contract, it will be null, as D. Bonaventure asserts concerning Matrimony loco cit. patet ex cap. fin. de condit. apposit. et cap. soles 32. quaest. 2. et lib. 5. tit. 4. part. 4. and the reason of D. Bonaventure is, because without its proper substance a thing does not subsist, cap. tua nos de sponsal. cap. detrahe 1. quaest. 1. facit leg. cum hi, §. si Praetor, ff. de transact. So also D. Thom. 3. part. quaest. 47. art. 5. in addit. The same concerning other contracts the Doctors commonly teach, as found in Fagundez lib. 1. cap. 7.

S. Bonaventure then inquires about this wicked condition: I contract with you, if you use poison to procure sterility in our marriage.

The Holy Doctor answers: it invalidates the marriage. So also Paludanus 4. dist. 29. quaest. 2. art. 5. num. 27. Sanchez lib. 5. de matrim. disp. 9. num. 8. Fagundez lib. 1. cap. 7. num. 24. The reason is, because it is just the same as binding oneself to take those poisons, which is against the substance of matrimony, as the Holy Doctor notes.

But if the condition be wicked, yet not against the substance of the contract, as: I take you in marriage, provided you go mad. I say, these conditions are to be judged as if not appended, and the contract is valid; wherefore they are reckoned with morally impossible conditions. For we can do only that which we can do licitly and justly Lege Nepos. Proculo 125. ff. de verb. signific. So D. Bonaventure loco cit. whom follow Ludovicus Lopez 2. part. Instruct. lib. 11. de matrim. cap. 12. Palat. lib. 5. de contract. cap. ult. folio 498. Sotus in 4. dist. 29. quaest. 1. art. 3. Gregorius Lopez lib. 6. verbo si furata res, titulo 4. part. 4.

When indeed the shameful conditions concern the present, or the past, since they already are, or already are not, in act: if they are, the contract is valid; otherwise it is void. So D. Thom. 4. dist. 29. quaest. unic. art. 3. quaest. 3. Paludanus ibi quaest. 2. art. 5. num. 28. Palatius lib. 5. de contract. cap. ult. fol. 498. Henriquez lib. 11. de matrim. cap. 12. num. 7. Alexander de Neuo in cap. de illis, num. 18. Couar. in 4. Decretal. 2. part. cap. 3. §. 2. num. 2. Sylvest. V. matrim. 3. quaesit. 1. Fagundez num. 18.

If the condition concerns the future, depending on the will of a third party, and it is positive, the first act of the third party's will is to be attended to; as: I betroth you to myself, if my father shall wish it. But if it is negative, all the acts are to be attended to; v. g. if my father shall not have objected; then at whatever time he objects, if the matter is still intact, the contract will be void, because it belongs to the nature of negation to destroy all things.

If you promise under this condition: if Peter gives Francis a house, it will suffice if he offers it, even if Francis does not accept, because it did not lie with him Leg. debitor, ff. de usuris. Azor p. p. lib. 11. cap. 15. quaestio 9. and it is deduced ex Leg. si ita, ff. de condit. inst. and ex Lege, statu liber, ff. de statu libero. The same is taught by Sanchez lib. 1. de matrim. disp. 33. num. 19. and lib. 4. Decal. cap. 23. num. 18.

If a condition appended to a contract is impeded by one of the contracting parties, with the other consenting, both already withdraw from the contract; but if with the other unwilling, the one impeding is held to the contract, as if the condition had been fulfilled. So Roderic. a Cunha in decret. in cap. quae ad nos, dist. 47. Molina de primog. lib. 2. cap. 13. num. 15. Sanchez lib. 4. decal. cap. 23. num. 47. Fagundez cap. 7. num. 26. It is proved from the rule: Cum per eum non fiat 66. de regul. iuris in 6. and ex regula in iure civili 122. ff. de regulis iuris, et Leg. in excavatione 85. §. fin. ff. de verb. oblig.

The reason is, because a contract requires good faith in the appended condition, which therefore one ought not to impede, either by oneself, or through another. See Sanchez loco cit. num. 48.

The Holy Doctor adds, that if a condition of marriage is by way of penalty, it has no force, because it ought to be free; whence, even if he does not contract, he is not held to that penalty.