Question VI: On the obligation that results from a valid contract

The general rule among the Doctors is this. A contract validly celebrated begets a natural obligation in the forum of conscience (forum Poli), such that one party cannot withdraw from it in conscience. So the Doctors commonly hold with D. Bonaventure in 4. dist. 27. et sequentibus, passim.

I said validly celebrated, because contracts are often prohibited by positive law, or commanded with such solemnity, without which they are void, as Suarez notes lib. 5. de Legibus, cap. 24. Salas disp. 16. sect. 4. Bonacina disp. 1. quaest. 1. puncto 7. §. 5.

If the positive law does not render persons incapable, but simply invalidates a contract made without such solemnity, then it is disputed: whether it has force in the forum of conscience.

The common opinion teaches that it does not. So Suarez, Salas, and Bonacina alleged above, Azor part. 3. lib. 6. cap. 9. Fagundez lib. 1. cap. 4. de contract. num. 7.

The reason of D. Bonav. in 4. dist. 28. quaest. 5. is, because the common and public good naturally preponderates over the private; but often, to avoid inconveniences, the civil law intervenes. See the Holy Doctor in corpore, et ad 1. where, I think, he adduces the incapacity of persons as a partial example of those things which law is wont to decree for invalidating contracts.

Where he also seems to teach that not all acts, or omissions, forbidden by law, invalidate contracts. A striking sign of invalidity is this, if the law says: let it be void ipso iure, or facto. See Suarez lib. 5. de legibus, cap. 26. et 32. Bonacina de contract. disp. 3. quaest. 1. puncto 3. Likewise if the law says, they cannot contract. So Sanchez lib. 6. decal. cap. 12. num. 10. et lib. 6. de matrim. disp. 38. num. 20. and Fagundez teaches that this opinion is already most common lib. 1. cap. 4. num. 11.

But if the law decrees something, supposing a contract already made, it is not judged to invalidate it. So Suarez lib. 5. cap. 32. as if it be decreed that from such a sale the gabel tax be paid, otherwise that contract be void.

You will ask: whether when the law invalidates contracts out of a presumption of fraud, they are valid where there was no fraud.

It is answered: if the Law invalidates absolutely out of the presumption that fraud could underlie them when done otherwise, they will always be void; for the Law, speaking absolutely, must be taken absolutely, ex Leg. pretio, ff. de publican. Leg. 1. §. et generaliter, ff. de legatis, prae- stand. Leg. 1. §. quod autem, ff. de aleatoribus, Menochius cons. 74. The reason is, because the root is commonly bad, as the Holy Doctor notes in speculo animae, cap. 2. §. Quartus fructus rapina. And in this manner the invalidations of contracts are commonly done.

ADVERTE (take note), however, that often from contracts there results an eviction, which is the loss of a just title by which one possessed another's property.

OBSERVANDUM (to be observed) also, that there are many obligations for avoiding culpable negligence. Now there is one gross (lata) fault; another light (levis); another most light (levissima). Some add a widest (latissima) one, which is Dolo (fraud), as Barr. notes in Leg. Quod Nerva, ff. depositi, who also adds a grosser fault, which is presumed fraud (dolus praesumptus); but these are reduced to gross fault.

GROSS fault (CULPA lata), is the omission of the diligence ordinary among provident men for guarding their own things: as if you place a book lent to you on the public road.

LIGHT fault (LEVIS) is the omission of the diligence customary among the more diligent; as if you do not lock the house with a key.

MOST LIGHT fault (LEVISSIMA) is the omission of the diligence which the most diligent employ; as if, going out, and thinking the gate closed with the key, you do not test whether it is so, Leg. si Pater, ff. ad Legem Aquil. Leg. Dinuu, ff. de offic. praes.

The FIRST rule is. When a contract is made for the sole utility of the receiver, he is held regarding most light fault, and a fortiori regarding light, and gross fault. So Molina tract. 2. disput. 293. num. 13. Nauar. sum. cap. 17. numero 184. Syluester V. culpa, num. 84. et verb. commodatum, quaest. 8. Lessius lib. 2. cap. 2. dub. 3. num. 11. Bonacina de contract. disp. 3. quaest. 1. puncto 6. It is clear from Leg. Vinnu, de offic. praesid. et Leg. si putator, ff. ad Leg. Aquiliam. The example is: if you have a garment on loan, and you place it in a chest, not locked.

EXCEPT, however, the one who receives precariously, who is held only regarding gross fault, or fraud Leg. contractus, ff. de reg. iuris, et Leg. Quaesitum, §. et illud, ff. de precario. So Sylvester, verb. precarium.

The SECOND rule. When the contract redounds to the utility of the giver alone, then the receiver is held only regarding gross fault, or fraud; as if you have deposited with me a hundred gold coins, that I may keep them for you gratis.

The THIRD rule is. If the contract is for the utility of both, the receiver is held regarding light, and gross fault, not regarding most light fault.

WHETHER, however, these rules hold only in the forum Soli, or also in the forum Poli; the opinions are difficult, and the probability stands on both sides. See Fagundez lib. XI. cap. 10.