Question VIII: Whether, and when, it is lawful to withdraw from a contract, the other party objecting

CONCERNING the obligation resulting from contract — something of which I said in quaest. 6., which is to preserve the contract — cases can nevertheless arise in which either party may be able to withdraw.

FIRST I bring forward: when satisfaction has been made on both sides for any contract whatever, it is licit for neither contracting party to withdraw from the contract, in any forum, even in conscience, whether by civil or by Canon law.

This is COMMON with D. Bonaventure in 4. dist. 35. passim, Sanchez Tom. 1. decal. lib. 3. cap. 15. num. 11. Meres de maioratu, p. p. quaest. 23. Molina tomo 1. de iustitia, tract. 2. disp. 258. The Gloss in Leg. ex placito, Cod. de rerum permut., where it is asserted that each is bound to the other concerning eviction.

I ASSERT second, the other party objecting, that it is unlawful in both forums, Poli, and Soli, to withdraw from nominated contracts entered into by mutual consent. It is gathered from cap. qualiter de pactis, according to leg. iuris gentium 7. ff. de pactis, Leg. si pecuniam, ff. de condict. causa data.

I ASSERT third, that although a pact has been confirmed by stipulation, if nevertheless one of the contracting parties has been unwilling to fulfill it on his side, it will be lawful for the other party, according to either law, to withdraw from such a pact and to reclaim whatever he gave. So Molina tract. 2. disput. 158. It is clear ex leg. 3. §. idem erit, ff. de condict. causa data, non secuta.

I ASSERT fourth. If we attend precisely to the disposition of the civil law, any one of the contracting parties can, the other unwilling, withdraw from any INNOMINATE contract (provided the matter is still intact), so that satisfaction has been made on neither side, and they remain within the limits of a bare pact, Molina disp. 258. It is clear ex leg. 3. §. praesertim in principio, and §. 1. and Leg. si pecuniam, ff. de condict. causa data, and from the Gloss, and Bartol. there; and it is the common opinion of all. Indeed, if the matter has been fulfilled on one side, but not yet on the other, you can withdraw without penalty according to the cited laws, even if the other is ready to fulfill on his side.

RIGHTLY, however, from the same laws Molina observes that, according to the same civil law, there is no place for repentance for him who has not fulfilled, with respect to him who has fulfilled.

I ASSERT fifth. Meanwhile, while one of the contracting parties does not dissent, the other cannot withdraw, against his will, both in the forum of conscience and according to either the civil or the Canon law, from a nominated contract already entered into and perfected, leg. sicut 5. Cod. de act. et obligat., joined with those laws which the Gloss there enumerates, verbo minime. LIMITED, however, are the contracts of precarium, mandate, and deposit, which do not forbid the grantor, the mandator, and the depositor from withdrawing.

Concerning PRECARIUM the matter is plain, ex Leg. cum precario, ff. de precario. Concerning the contract of mandate it is clear ex Leg. si mandavero, 2. §. finali, and Leg. si quis alieni, §. qui suscepit, ff. mandati. Concerning the contract of deposit it is gathered ex leg 1. §. penult. ff. de depositi.

ADD also the contract of partnership not having some determinate time affixed, Leg. verum, §. finali, ff. pro socio.

I ASSERT sixth, when a contract, consent having been given to it, does not receive from it some specific name, but in order to vindicate it further desires traditio of the thing, either on both sides, or on one side only; and it is not yet perfect by such traditio — one can meanwhile, while it is thus imperfect, if we attend to the civil law, withdraw. So Couar. in cap. quamvis pactum, 2. part. § 4. num. 14. Molina Tom. 2. tract. 2. disp. 257.

It is PROVEN, because a contract of this kind remains within the boundaries of a bare pact; but a bare pact does not give rise to an obligation in the CIVIL forum. leg. Iuris gentium 7. §. finali, ff. de pactis, there: nuda pactio obligationem non parit, sed parit exceptionem, leg. ex placito, Cod. de rerum permut.

IN the forum of conscience, however, from the natural law the obligation follows in all contracts, and before the civil law was introduced they already bound; as Vallaens teaches de iure emphyt. quaest. 6., Molina alleged above, Padella in Leg. Naturalis, §. etsi quidem, num. 17. ff. de praescript., Gomez Tom. 2. var. and others at Fagundez lib. 1. de contract. cap. 15.

I ASSERT seventh. The Canon law does not permit, at its own tribunal, withdrawing from a contract, even a bare one, cap. 1. de pactis, and cap. iuramenti 22. quaest. 5.

I ASSERT eighth. When one party is in default of fulfilling, he can withdraw according to every law, as the Doctors commonly teach in regula mora, de regul. iur. in 6.

I ASSERT ninth. The Donator can, according to every law, withdraw from a donation as long as the Donatarius has not accepted it. See Couar. in rubr. de testament. 3. part. numero 13. Sanchez lib. 1. de matrim. disput. 6. Molina above disput. 258. Fagundez lib. 1. cap. 15. num. 11.

They treat here: whether contracts are confirmed by oath; but of this below, disp. de Iuramento.

HERE, in passing, NOTE, from Bonacina disput. 3. de contract. quaest. 1. part. 1. num. 4., that one who promises something with an OATH can, before it is accepted, revoke his promise. The reason is that then the oath is accessory to the promise, whose nature it follows as of its principal; but no promise obliges before acceptance.

An OATH, moreover, affixed to a contract, has various effects; it first gives rise to a twofold obligation, one toward God, the other toward man: truly, if the contract is not affected by the oath, the second perishes and only the first subsists. Then it gives rise to an action of the party against the one swearing. Third, it makes the obligation confirmed by oath pass to the heirs; for it is real, not personal: understand this, however, when the oath affects the very contract. So Bonacina above, with Sanchez, alleged by him.