Question IV: Whether an external promise binds before it is accepted

I ASSERT with D. Bonaventura in 4. dist. 29. q. 2. ad 2. that a promise made externally, even if express, before it is accepted does not bind by any right, and can be revoked. Sotus lib. 3. de iustitia, q. 5. art. 3. follows, Tiraquellus ad leg. si unquam, Cod. de revoc. donat. v. libertis, num 54. Molina de primog. lib. 4. cap. 2. n. 62. Covarr. in c. Quamvis pactum, 2. part. §. 4 n. 15. Gomez tract. 2. var. cap. 9. Panormit. in c. Cum inter universas, de elect. Felinus in c. 1. de pactis, a n. 7. Fagundez lib. 3. de contract. c. 4. Less. lib. 2. c. 18. dub. 6. n. 35. et 38. Molina Tract. 2. de iust. disp. 263. Tanner. disp. 4. q. 1. n. 58. and others generally, with Bass. eo. v. Promissio, num. 5.

It is clear by the argument of St. Bonaventure, because an obligation of one to another is not contracted unless the will and consent of both concur.

It is next Proved by Caesarean law leg. 1. ff. de pollicitat. leg. 3. ff. eadem, leg. 2. §. sed si quis, et leg. obsenti, ff. ae donat.

By Canonical law Covarruvas, Felinus, and Panormitanus, cited above, prove it.

By Natural law the same is proved by Covarruvas, Gomez, Molina, Lessius above, Bartol. ad leg. si unus ex familia, §. pactum, ff. de pactis.

Whence they deduce, with St. Bonaventure, that it is licit to withdraw from betrothals thus promised.

Many make an exception for promises for pious causes: they prove it, because in lege 1. ff. de pollicit. the donation made to a city for restoring its ruins is excepted.

Others, however, deny that these are excepted, according to leg. Hoc iure, §. si quis dederit, ff. de donat. et leg. 3. ff. de servis exposit. et leg. 1. Cod. si mancipium.

Others make an exception for donations made to an infant, by the argument of leg. Iubemus, Cod. de emancipat. liberorum. So Decius consil. 245. Molina de primog. lib. 4. cap. 2. num. 76. but Fagundez num 8. does not dare to adduce that law, which speaks only of emancipated persons.

It is truly DOUBTFUL: whether a promise made to one present and silent is valid, because in favorable cases he who is silent seems to consent.

So affirm Iulius Clar. §. donatio, quaest. 14. Molina de primog. lib. 4. cap. 2. Fagundez num. 12. Cruz in directotio conscientiae, p. prima, pract. 7. art. 1. disp. 1. Diana Tract. 5. miscell. resol. 116. Covarr. in rubr. de testam. part. 3. num. 13. ex leg. qui patitur, ff. mandati.

You will ASK: whether a promise made to an absent person binds before acceptance.

It is Answered negatively from the foundation of D. Bonaventura adduced above, because an obligation arises only from the mutual consent of two or more. So it is had in leg. si tibi absenti, ff. de donat. et leg. nec ambigi, Cod. eodem, et leg. 4. tit. 4. partita 5. See Sanchez lib. 1. de matrim. disp. 6. Molina de primog. lib. 4. cap. 2. num. 62. Fagundez lib. 3. cap. 5. and others cited by these.

Fagundez says this is so true that even promises made to God, and not accepted by him, do not bind, such as vows of a good not greater. But this does not serve for confirmation; for since a vow is a promise of a greater good, it is invalid from its very terms, which is a matter of disputation for promises made to men; but this author often stumbles in this, that to obtain the same thing he returns again and again.

But for a promise made by an absent person to be accepted, three things are required. First, that the promiser signify it by himself, or by a messenger, as they teach commonly with Claro lib. 4. quaest. 12. Second, that when it is done through a messenger, it be accepted before him, nor is it enough that it be done before others. But if the matter is transacted by letters, the acceptance must be notified by rescript, or by a messenger. Third, that it not be revoked before acceptance. See Sanchez lib. 1. de matrim. disp. 7. num. 35. Lessius lib. 2. cap. 18. dub. 4. Tannerus disp. 6. quaest. 2. num. 49. But it can also be accepted after the death of the donor. So the cited authors, Sanchez disp. 6. and others.

The QUESTION, however, is about a promise confirmed by an oath, even if not yet accepted.

I say by Canonical and Civil law an action is given against one who thus promises and donates. So Panormit. in cap. cum venissent de constitut. num. 26. Covarr. in cap. Quamvis pactum, p. p. §. 2. Molina tract. 2. disp. 263. Fagundez lib. 3. cap. 5. num. 15. Thus the obligation passes to the heirs, and it is gathered from cap. contingat de iureiur. et cap. mulieres eodem in 6. et ex Authent. Sacramenta puber. Cod. si adversus vendit. but of this I shall treat in the disput. de iuramento. Meanwhile many deny it, cited by Bassaeus, V. Promissio, because an oath follows the nature of the promise; but this, not yet accepted, is revocable.