Question II: Whether for the validity of a contract the intention of contracting, and of binding oneself, is required

ST. BONAVENTURE DISTINGUISHES, in 4. dist. 27. art. 2. quaest. 2., validity in the Forum of conscience and in the External forum.

THEREFORE in the forum of conscience, if you had no intention of contracting — indeed you intended not to contract — the contract does not subsist in the forum of conscience. Nevertheless you will be bound in the same forum for all the damages proceeding from your fraud to the one contracting in good faith, and in the external forum you will be forced to stand to the contract, because the external forum judges only what is external, not hidden intentions. So Sanchez, Lib. 1. de matrim. disput. 9., Tanner., disp. 4. quaest. 6. 329., Fagundez, lib. 1. de contract. cap. 2. num. 3., who say the same much more of vows and other quasi-contracts, which regard the forum of conscience more, because God, who is the searcher of hearts, regards the will more than external acts, cap. si quandoquidem, 15. quaest. 6.; nevertheless you are bound for the damages, as I said, and to stand to the contract in the external forum, cap. cum Apostolica, de rescrip. cap. ex tenore, eodem titulo, ad finem, cap. ex litteris de constitut. Leg. quoties, §. qui dolo, ff. de probat. et 30. quaest. 1. cap. Dictum: Fraus, et dolus nemini debent patrocinari, as the Holy Doctor argues, in the place cited.

BUT IF you wished to contract, yet not to bind yourself, many affirm that you are bound. So concerning the contract of matrimony, and any other contract whatever, teach Peter Ledesma, de matrim. quaest. 43. art. 1. dub. 2.

BUT SPEAKING of contracts and of a vow, hold Soto, lib. 7. de iust. quaest. 1. art. 2., Gutierrez, lib. 2. canon. qq. cap. 22. num. 31., Aragon., 1. 2. quaest. 88. art. 1., Ludov. Lopez, p. p. Instruct. cap. 92., Suarez, lib. 2. de iuram. cap. 7. et lib. 1. de voto, cap. 3., fighting most keenly.

THE SECOND opinion is that such a one is not bound. So Fagundez, lib. 1. de contract. cap. 2., Henriquez, lib. 11. de matrim. cap. 13. num. 2., speaking of the contract of matrimony; but of a vow, Lessius, lib. 3. de voto, cap. 40. dub. 1., Azor, p. p. lib. 2. cap. 17. quaestio 9., Valentia, disp. 6. quaest. 6. puncto 1., Navar., summa, cap. 12. num. 38., Sanchez, tom. 1. de matrim. lib. 1. disp. 9., where he adduces twelve Doctors on this. This is the opinion of St. Bonaventure, in the place cited, and in the preceding quaest.

I ASSERT, with this opinion, that one contracting with the intention of not binding oneself is truly not bound.

IT IS PROVED from St. Bonaventure first, quaest. 1., because a contract binds of itself from within; and indeed obligation arises from the will of binding oneself; but this man did not will to bind himself; therefore he did not will the contract. And so it implies willing the contract and not willing to bind oneself; but the negative, since it is destructive and poisoned, takes away even the positive will of contracting, as the Seraphic Doctor teaches everywhere.

IT IS CONFIRMED, for the obligation resulting from the will of contracting does not result naturally; but it is a moral effect hanging upon the liberty of the will.

IT IS PROVED secondly from St. Bonaventure, quaest. 2., from Innocent III, and it is found de sponsalibus, where he decrees that, the intention of binding oneself failing, matrimony is not valid.

IT IS PROVED thirdly from the Holy Doctor. Where the formal reason fails, and therefore the form, the quiddity of the thing fails, and consequently the thing itself; but consent is the form of the words which make matrimony; therefore, the intention of binding oneself failing, there is no contract. The minor is proved, for a contract is an obligation from one side and the other, arising from the will and agreement of the parties, as I said at the beginning of the disputation, and the acts of agents do not obligate beyond their intention. The same the Holy Doctor argues of baptism, 4. dist. 6. art. 2. quaest. 1.; but by God's law we bind ourselves in that.

IT IS PROVED fourthly from St. Bonaventure, dist. 28. quaest. 3., that a condition contrary to the substance of matrimony annuls it, ex cap. finali de condit. appositis; for although the one contracting have the intention of contracting under a condition, that matrimony, for example, be for a time and not perpetual, he does not contract, because matrimony, if it is, is perpetual and indissoluble, as the Holy Doctor proves, dist. 28. art. 2. quaest. 1.; therefore, since to bind oneself is of its intrinsic reason, he who contracts under the condition of not binding himself does not contract. The Authors of this opinion use these arguments.

THE FOUNDATIONS of the opposite opinion are undermined by these foundations, nail against nail as it were. But indeed, if you had the intention of contracting and of binding yourself, you are bound, even if you had not the intention of executing. So commonly the Doctors, cited in Fagundez, num. 9.

THE REASON is, because he who wills the antecedent wills also the consequent, lib. 1. §. 1. ff. si usufrust. pet., when the consequent will infallibly follow upon it, as the Holy Doctor argues, in 2. dist. 32. art. 3. quaest. 2. ad 2., and in other places, where he brings the example of one who wills to be Abbot of monks; consequently he ought also to will to be a monk; otherwise he is a fool.