Question V: Whether a promise binds when made for a base cause

It is CERTAIN that a promise for a base cause, such as homicide and concubinage, is invalid even before performance. They agree with D. Bonavent. in 4. dist. 28. dub. 1. litt et quaest. 3. D. Thom. 2. 2. q. 32. art. 7. et quaest. 62. art. 5. ad 2. Caiet. ibi, Covarr. ad Regulam Peccatum 2. part. §. 2. Corduba lib. 1. quaest. 32. art. 2. Medina Cod. de restit. quaest. 20. Lessius tract. 1. de iustitia, lib. 2. cap. 18. dub. 3. and the rest cited by Tannerus disp. 6. quaest. 2. num. 48.

The REASON is that of D. Bonaventure, on which all rely, because no one can, or ought, to bind himself to perpetrating a sin, whether by oath, or by a simple promise.

The QUESTION, however, is whether after the deed is perpetrated the promiser is bound to pay the promised price.

The FIRST opinion is that he is bound. So the cited authors, except St. Bonaventure; Less. Tom. 1. lib. 2. cap. 18. dub. 3. also agrees, Sancius cap. 14. dub. 8. a num. 52. Guttier. lib. 2. canon. cap. 10. Bartolus, and the Legists generally in leg. 2. Cod. de condict. ob turpem causam, Navar. in summa Lat. cap 17. num. 14. where he asserts that Legists, Canonists, and Theologians conspire in this. And Sotus lib. 4. de iust. quaest. 7. art. 1. Fagundez lib. 3. cap. 6. de contract. and others cited by Diana tom. 3. tract. 4. miscell. resol. 26. prove it.

The SECOND opinion denies that he is bound to pay; indeed, that he is bound to restore the price, even after the perpetration of the accepted deed. So many cited by Covarr. in regulam Peccatum, 2. part, §. 2. num. 9. and among the Theologians, Medina Cod. de restitut. quaest. 28. Dur. in 3. dist. 39. quaest. 4. which Lessius, cited above, and Fagundez num. 5. with many others, also call probable, Diana Tomo 1. Tract. 4. miscell. resol. 26. Bassaeus inclines to it, V. Promissio, num. 7.

AS TO D. Bonaventure in 4. dist. 28. dub. 1. litt. and in speculo animae, cap. 2. he gives the general rule from D. Isidore de contemptu mundi, cap. de voto. In malis promissis rescinde fidem. Wherefore he seems to stand for this opinion there.

It is PROVED first ex leg. si plagy. ff. de verb. obligationibus, et in leg. generaliter, ff. eodem.

Fagundez answers num. 6. that those laws only wish such conventions to be invalid before the deed is perpetrated; nor is a right of claiming back the promised price afterwards given in the external forum. That this is indeed asserted in the laws, St. Bonaventure teaches in 4. dist. 15. part. 2. art. 2. quaest. 1. ad 4. but the law of plagiarism says: Si plagy faciendi factine causa concepta sit stipulatio, ab initio non valet; the other law, however, says: Generaliter novimus turpes stipulationes esse nullius momenti. Therefore the laws decree something more, as the Saintly Doctor teaches in the first place cited.

He answers secondly that it must be understood of a promise made with a view to baseness; not of one made with a view to labor, danger, and inconvenience.

BUT I show that the laws thought nothing of this distinction, nor spoke of the bare right and dominion transferred, so that no restitution would be given; for lex Generaliter says thus: Generaliter novimus, turpes stipulationes nullius esse momenti, velut si quis homicidium, vel sacrilegium, se facturum promittat, (but he subjoins) sed et officio Praetoris continetur huiusmodi obligationibus actionem denegari. Behold, it decrees both distinctly: first, nullity; second, consequently, that no action is given. But the reason of Fagundez, distinguishing more subtly than is fitting, that he deserves pay for the labor, though not for the malice, vanishes; for the laws take account of crimes, not with a view to barring them, but as a work useful to someone, such as killing an enemy at his own risk, etc.

Yet Diana notes part. 4. tract. 4. miscell. resol. 27. that one is not bound to pay an immoderate sum, such as 100 gold pieces to a harlot, even if he had promised it by oath, because an oath added obliges only to a sum in which there is no prodigality, as Sotus lib. 4. quaest. 7. art. 1. ad 2. Martin Ledesma 2. part. quarti, quaest. 18. art. 5. Mercatus de contract. lib. 6. cap. 16. Palacius de contract. lib. 5. cap. 11. Aragon. 2. 2. quaest. 89. art 7. Salon. 2. 2. quaest. 62. art. 5. controu. 4. there Bannes disp. 5. concl. 3. and others teach, though Molina and others think the opposite probatively.

Fagundez also notes num 8. with the others of the first opinion, that every promise in whose fulfillment there is some sin, even a merely venial one, is void, even if confirmed by an oath. The reason of D. Bonaventure dub. cit. litt. is, because no one can be bound to sin, even by an oath, which is not a bond of iniquity. So also Sanchez lib. 1. de matrim. disput. 52. Azor p. p. lib. 11. cap. 7. Molina tract. 1. disp. 149.

Promises are VOID also which take away the liberty of making a testament, or of disposing freely of one's own things leg. Pacta, Cod. de pactis, where it is had: Pacta, quae contra leges, constitutionesque, vel contra bonos mores fiunt, nullam vim habere indubitati iuris est.