Question II: Whether a simple promise, once accepted, binds in justice

IT IS MOST CERTAIN that breaking a promise accidentally is against justice: consider the cases in which the promiser, trusting in his promise, does not provide for himself from elsewhere, and a grave loss befalls him. See Sanchez lib. 1. de matrim. disp. 5.

There is therefore a controversy: whether an obligation of justice arises from a promise of itself.

The FIRST opinion is that of the authors who hold it to be an obligation from justice. So Sanchez lib. 1. de matrim. disp. 5. num. 20. Lessius Tom. 1. lib. 2. dub. 8. num. 55. Navarr. sum. lat. cap. 18. num. 6. Sotus lib. 7. de iustitia quaest. 2. art. 1. Covarr. in cap. quamvis pactum, part. 2. §. 4. num. 24. Angel. V. pactum, Sylvester ibi, quaest. 4. et V. Lex, quaest. 10. Rich. 4. dist. 38. quaest. 3. and others cited by Sanchez loco cit. et Dianam Parte 1. Tract. 3. miscell. resol. 9. Tannetus, however, disp. 4. quaest. 1. num. 62. holds that one is bound as it were from justice. Bassaeus, V. Promissio, is more severe.

The OPPOSITE opinion holds that it is an obligation only of fidelity. So Sotus in 4. dist. 20. quaest. 1. art. 2. Suarez de aux. disp. 2. sect. 2. Molina tract. 2. de iust. disp. 262. Azor tract. 1. lib. 11. cap. 5. Thom. 2. 2. quaest. 88. art. 1. Cajetan ibi, Fagundez lib. 3. de contract. cap. 2. Lessius num. 54. calls it probable. Firmus verbo perfidia, Leddesma Tom. 1. tract. 10. cap. 3. Fernandez in suo examine, p. p. cap. 15. §. 8. Diana loco cit. indeed hold that it does not bind gravely. This is the opinion of St. Bonaventure locis citandis.

I ASSERT, with this opinion, that a simple promise given and accepted binds only from fidelity.

It is PROVED by St. Bonaventure in 2. dist. 17. art. 2. quaest. 2. in corpore, et ad 1. with the argument used by Molina and Fagundez, because a simple promise is a free and purely liberal giving of one's faith, and proceeds from mere liberality, and hence does not confer a right of justice, unless the promiser intended expressly to bind himself to that by liberality — which is not to be believed to be intended. It is confirmed by Suarez, because a simple promise does not include by its nature any actual donation, but a pure and mere obligation of faith to give something in the future; yet this does not transfer a right in a thing, since nothing is given. It is confirmed by St. Bonaventure ibi, because a liberal promise depends on the will of the promiser, who can refuse to bind himself to justice, but only to give his faith.

You will SAY: A promise accepted passes into a pact of two, from which a civil obligation arises, which also passes to the heirs Leg. si quis argentum, §. ult. Cod. de donat. et cap. 1. de pactis.

It is ANSWERED that this happens in the external forum, if it is established by an instrument that he wished to bind himself, because since the obligation of the promiser is established, the laws presume that he wished it from justice, since his intention is not established, as St. Bonaventure warns in 4. dist. 27. art. 2. quaest. 2. ad ultimum; it is otherwise in the forum of conscience. It is proved by the Saintly Doctor also locis adductis, P. P. Tract. 1. disp. 19. quaest. 1.

I ADD, however, that this sin against fidelity is mortal, at least in the gravest matter, supposing that it binds only from fidelity, as many Doctors say cited by Fagundez; most consider such matter four times greater than the matter of theft, cited by Bassaeus.