Question XIX: Whether an oath confirms contracts that could otherwise be voided

The question treats: Whether an Oath, beyond its force of obliging to the performance of the thing sworn, also has the force of confirming those contracts to which it is added.

Now a contract can be understood to be ratified by an oath in two ways.

First, when the contract, apart from the oath, was valid of itself and by law; but it could be revoked, and it was lawful to appeal against it in court — and by virtue of the oath it is made irrevocable, such as contracts entered into by minors, by the Judge's decree and with the consent of a Curator.

Second, when the contract was invalid by the law itself; but by virtue of the added oath it becomes valid, or at least has all the effects as if it were valid, such as contracts entered into by a minor without the consent of a Curator, and this is established ex leg. si Curatorem, cod. de integra. restit.

Note also that an oath by its nature does not have the force of confirming contracts, for of itself it was instituted only to confirm an asserted truth. Hence our question is: Whether it obtains this force from any positive law, CANONICAL, or CIVIL.

The first opinion, therefore, is that no force in any law is inherent in an oath. So Iason Auth. sacram puber. num. 5. and 36. and 37. Igneus in repet. of the same Auth. num. 15. Portius, §. Extraneis, num. 11. Instit. de haered. qualitate.

Yet the true teaching is that an oath sometimes has the force of confirming the contracts to which it is added, which are void by civil or canon law. Thus the alienation of a dowry land; the renunciation of a future succession, and contracts of minors made without the authority of a Curator and the decree of a judge, when they concern immovable goods, are void — and yet, if they are buttressed by an oath, they are valid per cap. Quamvis pactum, in 6. and cap. 2. de iureiur. and cap. cum contingat, same title, and Auth. Sacramenta puberum, Cod. si adversus, vendit. That this teaching is most common, Sanchez reports Tom. 1. Decal. lib. 3. c. 12. recensens n. 11. of sixty Doctors, to whom add Fagundez in secundum praeceptum, lib. 2. c. 17. and others cited by him.

AZORIUS, however, ERRS, Tom. 2. lib. 11. c. 7. quaestio 1., saying that an oath confirms contracts void indeed by civil law, but not by canon law. For the contrary holds, because a donation between spouses is void by canon law, cap. finali de donat. inter virum, et uxorem; and yet it is confirmed by an oath, as Sanchez teaches with the most frequent opinion lib. 6. de matrimonio, disput. 11. — and Azorius himself admits the same.

THEY OBJECT: the common axiom of the jurists: An oath is to be regulated according to the nature of the act to which it is attached leg. finali, Cod. de non numerata pecunia. Hence many Doctors teach that an oath does not increase the obligation of the thing to which it is attached, but only adds to the act the bond of Religion: Therefore an oath does not confirm contracts, but leaves them in their own state.

TO MANY of these Fagundez replies. But I say, from D. Bonavent. in 4. dist. 28. dubiis lit., that the axiom is true with respect to things that are of the law of nature, Divine, or of Nations — such things, namely, invalid ones, are not changed by a new oath, but are left in their pristine state; but it does not hold in contracts of merely human law.

The RULE, however, most firm for knowing when a contract is ratified by an oath, is from D. Bonavent. loco cit. and Fagundez num. 114.: Whenever an oath attached to contracts can be kept without sin, and no turpitude is found in the one in whose favor it is given, and it contains not only a promise of doing the promised thing, but also such a promise as is at least equivalent to a promise of not revoking the contract, then the oath confirms that contract. This rule Sanchez hands down Tom. 1. lib. 3. Decal. cap. 12. num. 42.

AS TO the first condition, which is required that the oath can be kept without sin; some reduce another to it, namely that the oath not be made to the prejudice of another — but that is the same as not being able to be kept without sin cap. cum contingat de iureiurando, and cap. Quamvis pactum de pactis, in 6.

ON the second condition, that there be no turpitude on the part of the one receiving the oath, that is, on the part of him in whose favor it is given, they ask what this turpitude must be like.

IT IS ANSWERED, with Sanchez Tom. 1. lib. 3. cap. 12. num. 53. and Fagundez num. 17., that turpitude occurs not only when the receiver unjustly accepts and is bound; but also when he sins in accepting the thing promised to him by oath, even though he is not bound to restore it, nor does he sin in keeping it.

From the first condition it follows that contracts are not ratified by an oath against the law of Nature, Divine, or of Nations; indeed, against civil and canonical law, which is immediately ordered to the common good, as Fagundez proves at length. The reason is, because all these contracts are mortal or venial sins, according to the gravity of the matter.

On the contrary, however, if such a law is enacted for the favor of a private person, it does not oblige under fault; therefore an oath confirms such contracts against those laws which favor a private person.

YOU WILL ASK: whether, in doubt, you are bound if you have sworn.

I SAY, that in these cases the favor stands for liberty, as I said de voto, disput. 1. But if you have promised something, restrict it; as if you swore not to play, restrict it to illicit games, cap. 1. de Iureiur. in 6. Sanchez lib. 3. cap. 17. and 18. Navar. cap. 12. num. 11. Rodriquez p. p. quaest. 188. num. 10. Reginaldus lib. 18. num. 34. Bassaeus V. Iuramentum. 4. num. 6.