17. On the Obligation of Law

1. Caius accepted the inheritance of Sempronius simply, without first making an inventory, seeing that it consisted of many movable and immovable goods. Wherefore Caius hoped that his fortune would be increased not a little from it. But, since the debts of the deceased exceeded the inheritance, he, seeing that he had been deceived, refused to pay them. The matter is brought into court, and by the sentence of the judge, in the first instance and in the second and third appeal, he is condemned, according to law, to payment.

Q. 1. What is a law founded on presumption? 2. Is Caius held in conscience to pay those debts?

R. To the first, cf. I. M. 204, 205, 206. To the second: "If the heir," say the Salmanticenses, "does not make an inventory within the term prescribed by law, he is held to all the debts and obligations of the deceased, even beyond the resources of the inheritance; because the law presumes that the heir, by entering upon the inheritance without inventory, received more things sufficient for satisfaction, and concealed some by fraud. But in the forum of conscience, if the inheritance is truly insufficient to pay all the debts, are the heirs held to pay the debts of the deceased? Doctors dispute here. But the resolution of this difficulty depends on that which we have resolved: namely, whether laws founded on presumptions oblige in conscience, if the presumption fails. There we have proved at length the negative part. Wherefore, since the said laws are founded on the presumption of fraud and deceit, the heir who entered upon the inheritance without inventory is not held to pay, above the resources of the inheritance, the debts of the deceased in conscience, as at present Sylvester, Gomez, Petrus Navarrus, Villalobos, Alvarus, Martinus a S. Ioseph, Sanchez, Sayrus, Trullench, Diana, Vasquez, Bonacina teach. And this is also true even after the sentence of the judge; because even such a sentence rests on a false presumption of fraud or deceit, as Sanchez, Trullench, Bonacina, and others hold." Tr. 14, c. 5, p. 11, n. 151.

St. Alphonsus, Homo Apostolicus, tr. 2, n. 26, says: "It is asked whether penal laws founded on a false presumption oblige in conscience? It is necessary to distinguish the presumption called of presupposition, which is the presupposed fact, from the presumption of definition, which is the presumption of law, which judges according to the presupposed fact. Therefore, if the presupposition of fact is false, the law does not oblige; for example, if in court it was falsely proved that your animal caused damage, then you are not held to pay the penalty, and, sentence having been passed that you pay, although externally, in order that scandal may be avoided, you are held to pay, nevertheless you can secretly make compensation to yourself. The same holds for heirs who, on account of a neglected inventory, are punished by paying the debts of the deceased beyond the hereditary goods, when in reality the debts exceed the inheritance. But otherwise it must be said if the false presumption were only false in law; for example, if your animal certainly was the cause of the damage, but the presumption that this happened by your fault is false; because then you are held to pay the penalty (this is understood after sentence); because the end of the law is not only that it punish, but also that it render men more diligent in avoiding the damages of others."

D'Annibale, 3rd ed., p. 2, n. 396 bis, has these words: "When an inventory has duly been made, the goods of the inheritance and the goods of the heir, with the rights and obligations cohering with them, remain separated from each other by the law itself; on the contrary, when the inventory is in any way lacking, from the goods of the inheritance and from the proper goods of the heir one patrimony is made, and the rights and obligations of both coalesce. By this fact, in the former case the creditors of the deceased do not become creditors of the heir, who for that reason is not compelled to pay them beyond the resources of the inheritance; but in the latter case the creditors of the deceased become creditors of the heir; and therefore the heir is compelled in the external forum, if the inheritance is not adequate, out of his own goods also to satisfy not only the creditors, but also the legatees. Whether also in the internal forum is not sufficiently agreed. Some affirm it, since, by entering upon the inheritance, he is understood to have promised this to the creditors and legatees; others, more commonly, and more truly, deny it, because the law rests on a presumption of fact; namely, that the inheritance was rich." Nevertheless the same D'Annibale, not very consistent with himself, in the number almost immediately preceding, namely 394, says that, if an heir enters upon an inheritance without the benefit of inventory, whether the heir is held to satisfy all the debts of the inheritance "is not sufficiently agreed; the more common opinion affirms, and to me the truer. This question is whether hereditary creditors, who, once an inventory has been made, remain creditors of the deceased alone, when it is omitted become creditors of the heir? And who would deny it, the patrimonies of the deceased and of the heir being confused?"

The same is affirmed by many other theologians. Wherefore, as regards extrinsic authority, Caius cannot be obliged in conscience to pay the debts beyond the inheritance. But as regards the reason, a doubt can indeed be raised whether that law and sentence are founded on a presumption of fact, namely that the inheritance in reality exceeds the debts (since, ordinarily speaking, men are not accustomed in such a matter to be negligent and incautious, so that they enter upon an inheritance without the benefit of inventory unless they are first certain of its sufficiency and excess with respect to the debts), and that fraud and deceit truly intervene; or rather on a presumption of law, namely of the common danger of deceit and fraud. But since, as has already been said, men in this matter are not accustomed to be so incautious that they not only take no profit from it, but even suffer loss, it seems that that law and sentence are founded in reality on a presumption of fact. But since that presumption is false, Caius cannot in conscience be obliged by that law and sentence; for presumption yields to truth. Furthermore, since at most it is doubtful whether that law and sentence are founded on a presumption of fact or of law, an obligation in conscience cannot be imposed; for it is not certainly established. For it is unjust, and contrary to the axiom, That the condition of the possessor is better, to impose the payment of a debt when it is probable that no obligation of this payment exists. - I. M. 1055; G. 105, 106, 1016; Comp. v. 1, n. 102, 823; Elbel 307-310, 427-430.

2. Alexius completes the twenty-first year of his age on Saturday evening; nevertheless he would like to receive the subdiaconate in the morning, and he explains his desire to the vicar general, who responds that he can. For, he says, in those things which are morally estimated, the minimum is reputed as nothing. And this is also handed down by St. Thomas, II-II, q. 62, a. 2, c. and ad 4, and it is also had in L. 1, de Rest. in integr.

Q. 1. To what does law oblige? 2. What as to the case?

R. To the first, cf. I. M. 207, 208. To the second: Alexius cannot receive the subdiaconate. For, completing the twenty-first year of his age in the evening, he had not yet in the morning entered the twenty-second year required for the subdiaconate. The minimum in the case must altogether be computed and cannot be neglected; because there is question of a matter altogether determined and defined by law. The minimum is indeed reputed as nothing, as is well said in the case, when there is question of things which are morally estimated, as for example if a very little thing is omitted in hearing an entire Mass. But when there is question of things altogether defined, even the minimum on the contrary cannot be neglected. L. 15, de Divers. tempor. praescr. Moreover, from the Council of Trent, sess. 23, ch. 13, de R., no one can be promoted to the subdiaconate before the twenty-second year of age. And therefore the year begun is indeed sufficient, but the year not yet begun is by no means sufficient. - D'Annibale, 3rd ed., p. 1, n. 39.

3. Liborius, from the penance imposed on him by his confessor, had to keep a double fast, to hear two Masses, and to recite two rosaries. He willingly kept the fasts, led by a motive of avarice; and in order to diminish the inconvenience of the fast, he indulged sleep for almost the whole day, rising only to take the little morsel in the morning, at dinner, and at supper. But he heard two Masses at the same time, reciting two rosaries at the same time. And, since he himself was accustomed daily to recite the rosary, on that day he omitted reciting a third rosary out of devotion. But while he was hearing the Masses, having been gravely tempted, he consented to an evil desire.

Q. 1. How is law to be observed, and how is its obligation satisfied? 2. What is to be thought concerning Liborius?

R. To the first, cf. I. M. 213, 214, 215. To the second: Liborius indeed satisfied the obligation of keeping the double fast, although he sinned venially on account of avarice and laziness. For he kept the two fasts imposed on him in reality. But he by no means satisfied the obligation of hearing two Masses; for evidently the intention of the confessor was that he should hear two Masses at different times, otherwise he would have imposed on him only one Mass to be heard. Wherefore it suffices now that he hear the other Mass. For the fact that he adhered to an evil desire at the time of Mass did not indeed prevent him from truly hearing Mass, if at least he placed no exterior act incompatible with hearing the sacred rite. He also satisfied the obligation of reciting two rosaries; although he recited them during the time of Mass; since these two obligations can be fulfilled at the same time. Nor indeed is he held to recite a third rosary. For that is prescribed by no law, no precept, but is a work of supererogation. - G. 99-102; Elbel 392-396, 401, 402.

4. Pantaleo, a soldier, had harmed a certain rustic indeed beyond his intention, but not without some negligence. Pantaleo, accused by the same rustic, was condemned by his military commander to compensate the damage. But, because he was unwilling to compensate the damage, military pay of 60 lire was therefore subtracted from him. Pantaleo, thinking that he had been unjustly condemned and despoiled of his own property, secretly compensated himself for this subtraction of pay, stealing 30 lire from the rustic, and another 30 lire from his own commander.

Q. 1. Did Pantaleo satisfy justice, being unwilling to compensate the aforesaid damage, and unwillingly suffering the subtraction of his salary for repairing it? 2. Did he then act licitly by compensating himself secretly?

R. To the first: although Pantaleo had not afterwards used tacit compensation, nevertheless, unwillingly sustaining the subtraction of salary for repairing the damage, he would not have satisfied justice in conscience, namely as regards the internal affection of the mind. For this is opposed to the virtue of justice, and justice is injured in the affection, although in reality in the effect there is no injury to it. Cf. I. M. 213. To the second: Pantaleo acted illicitly and unjustly by secretly compensating himself, and he is held to restitution. For although theological fault was lacking, juridical fault was not lacking because of the negligence committed; and therefore the commander's sentence was legitimate and just. Wherefore, in the forum of conscience, he must altogether stand by it. - Elbel 397-400; G. 105, 106.

5. Patritius, on the day before the Ember days, spends the whole day hunting, foreseeing that by reason of weariness it will not be possible for him to fast. Moreover, on a feast day very early in the morning he indulges in wine a little more freely, foreseeing that he will not be able to be present at the sacred rite.

Q. 1. Is it licit to place impediments to the observance of law? 2. What as to the case?

R. To the first, cf. I. M. 220, 221, 222. To the second: Ithuriaga, Cas. 32, n. 9 seqq., resolves this case in this way. Patritius in the second case sinned both against temperance and against the precept of hearing the sacred rite. "What is more conformable to reason than that any precept, when it urges, at once by itself obliges both to placing the means which are by themselves and proximately necessary so that we may execute it, and to not placing impediments which can proximately obstruct the execution of it? Let him deny this who dares to deny it: that he who is held to the end is especially held to all that without which the end would be intended in vain.... He who is obliged to the execution of law is held also from this source both to employ the ordinary means necessary in themselves for observing the law, and, as far as can be done, to remove everything which can in itself obstruct the law from being observed when it urges.... Unless, however, there is question of impediments that are necessary, or so useful that it is preferable that they not be removed than that the law be fulfilled. For then it is settled that human laws do not urge so strictly that they oblige to omitting either necessary things, or things which are more excellent than the matter prescribed, so that this should be preferred to those. Wherefore, if necessity urges, or the advantage of assisting a sick person at the time when the precept of Mass urges, Mass is rather to be omitted than aid to the sick person. If someone truly cannot keep the fast and at the same time preach, or hear confessions, let him rather not keep the fast, so that he may apply himself to these works of piety, which are better than fasting. Nor by this reason is a work of counsel preferred to a work of precept; but the matter is constituted in such a state that, on account of the greater good, the obligation of the precept ceases, lest it seem to impede the greater good.

"Now, did Patritius sin or not, hunting on the day before the Ember days, as in the case? Indeed, under the leadership of the great Suarez, Sanchez, Dicastillo, Gobat, Tamburini, La-Croix, Palao, Sporer, Becanus, Moia, and all who with the latter contend that it is licit to place an obstacle to the execution of a precept, it is more probable to me, so that it may be permitted me to maintain it even through the Probabiliorists themselves, that Patritius did not sin against the law of fasting. For what is it on account of which he is said to have sinned? Is it because the day before he devoted himself to hunting? But the day before the precept was not yet present. Is it because on the following day, when the precept was now urging, he did not keep the fast? But on the following day, on account of the incapacity which followed, he was bound by no precept.... Therefore he sinned neither on the preceding day nor on the following day.

"You will say that he sinned on the preceding day, because the precept which now for now does not oblige, obliges now for then; whence Patritius on the preceding day had to abstain from hunting, so that on the following day he could fast. Very fine indeed! But what does this mean: the law obliges now for then? Certainly nothing else than that the law which now does not oblige will oblige afterwards; if therefore it will not oblige afterwards, it is badly said to oblige now for then; but, the incapacity for fasting supervening, the law no longer obliges to fasting; therefore Patritius on the preceding day, not even for the following day, was obliged absolutely, but only conditionally, namely if the law of fasting should find him fit for keeping the fast; but it did not find him fit because of the supervening weakness; therefore he did not sin against the law of fasting.

"But you will say that this is true if Patritius indeed foresaw, but did not intend not to keep the fast. For if he had devoted himself to hunting with that design, he would have clearly offended against the law of fasting. Yet I say the contrary myself: It is licit for anyone, with impunity, to place means licit by their own nature, from a direct intention of obtaining an end not prohibited by law; but hunting is something licit by its own nature, and to flee the obligation of the precept, or to effect that the precept not oblige, is not something prohibited by law; therefore it was licit for Patritius with that design to use his right, by hunting, so that he would not be bound by the law of fasting.

"If these things are true, with equal right and reason it will be said to be true that an ecclesiastic, the day before a voyage, can throw his breviary into the sea.... There is a distinction. For there are some means which must be placed before the precept begins to urge, so that we may fulfill the precept when it urges; because, namely, they are both directly and immediately necessary for the execution of the precept, almost as its matter, and otherwise they cannot so easily be procured when the precept is already urging. Thus, if today you have the opportunity of a confessor, which you foresee that you will not have tomorrow when you will be obliged to Communion, by the precept itself of Communion you are held to anticipate confession. And thus, by the precept itself by which an ecclesiastic is held to recite, he is held either to preserve the breviary or even before the time to provide for himself, so that, the precept arriving, he may be able to recite.... The matter is otherwise in the species of the case: for to abstain from hunting does not in itself, directly, proximately, and immediately pertain to fasting, so that by the very precept of fasting we must abstain from hunting, for this reason, that we may preserve strength for fasting; unless you wish that those gravely ill offend against the precepts of the Church even from this, that for the end of fulfilling them, they do not procure good health. Therefore, to finish in a word: the precept of reciting the canonical hours obliges absolutely to having a breviary, so that we may recite the hours; and hence the ecclesiastic who voluntarily deprives himself of the breviary sins against the precept. The precept of fasting obliges, not that we have strength for fasting, but that, if we have strength, we fast; and hence, if we do not have strength for fasting, by not fasting we do not sin against the precept of fasting. But we would sin (which is proved by the parity objected), if, foreseeing that on the very day of fasting fasting foods would not be available, we should be unwilling deliberately on the day before the fast day to provide them, or should consume those already provided for this end, that on the fast day we might be able to eat forbidden foods; because, namely, as the breviary for the canonical hours, so also fasting foods for the fast are equally required in themselves, directly, proximately, and immediately, as it were as the matter of the precept, so that by the very precept of fasting we must provide such foods even before the time, just as by the very precept of the divine office we must provide ourselves with a breviary. But strength for fulfilling the precept does not pertain to the matter of the same, nor is it a means, except by way of disposition by accident and remotely necessary for the execution of the precept.

"By custom thus interpreting the law, guilty of violation of feast days are sacristans, tailors, shoemakers, and in some places even bakers, who, when they could conveniently do so, are unwilling on the day before a feast to adorn churches, finish garments and shoes, bake bread, so that they may be compelled to perform all these very things on the feast day itself, by a necessity industriously sought. Similarly I think those guilty against the precepts both of annual confession and of paschal Communion, who on the day before the day (which is the term for fulfilling the precept) would go elsewhere, where he could not receive Communion or expiate his sins; because, namely, particular laws of this sort, no one denying it, oblige to not placing impediments on the day before to the execution of the precept: not so the law of fasting in the species of the case which we have discussed."

This resolution of the learned theologian can indeed be admitted, insofar as Patritius, as in the case, acting for another honest end, merely foresees that afterwards he cannot fast. For if, beyond this, he intends it, and with that design devotes himself to hunting, and therefore does not undertake hunting from another honest cause, then he seems to act in fraud of the law. For to act in fraud of the law is nothing else than to do something deliberately, so that the law may be eluded. This indeed the law itself implicitly prohibits; otherwise the obligation of the law, if not altogether, certainly in great part, would be made void. I. M. 221. "He transgresses the law," says D'Annibale, 3rd ed., p. 1, n. 176, "both he who does against the words of the law, whether he omits what the law commands to be done, or admits what it forbids to be done; and he who, embracing the words of the law, strives against the will of the law, L. 5, C. h. t.; whether he omits that which the law wished to be done, but did not command to be done in express words, or does that which the law did not wish to be done, but did not forbid to be done in express words, L. 29, h. t.; which we properly call acting in fraud of the law. Moreover fraud can be done to the law in almost innumerable ways. But, so that fraud may seem to have been done to the law, it is necessary that what is done or omitted be forbidden to be done or omitted by some law at least implicitly; for otherwise, against whom is the fraud? For the things which by no law, either explicitly or implicitly, are commanded or forbidden, each man omits or does by his own right; and no one acts in fraud who uses his own right, L. 56, de R. I.; C. 31, de Elect." But nothing seems more implicitly willed by the law than that nothing be done precisely with that intention or with that design, namely, that by eluding it someone may afterwards with impunity be able to act against the very words of the law and the law itself. - L. 1, 3, n. 672, 674, 1045, 1046; 1. 6, n. 569, 583; G. 103, 104.

6. Cleophas, born from a most noble family and lacking offspring, bound himself by a vow that, for the whole time of his life, on every Friday in honor of the Lord's Passion, he would keep a strict fast, if he should have male offspring for propagating the name of the family; otherwise that family would have to be extinguished. Cleophas obtained the desired offspring, and began faithfully to observe the fast. But after a year the offspring dies, nor does any hope appear that he will have another son.

Q. 1. When the end of a law ceases, does the law cease? 2. What as to the case?

R. To the first, cf. I. M. 172, 173. To the second: Cleophas is no longer held to keeping the fast, because the vow was uttered only under the condition, if God should give a male heir by the force of whom the family would flourish again. But this condition was not fulfilled, because the son born died a little later. Therefore the vow, as conditioned, the condition not subsisting, ceases to oblige. There is added that, the adequate final cause ceasing, likewise the obligation of the law ceases. But the final cause, and indeed the adequate one, of this quasi-private law has ceased by the very fact that every hope of obtaining a male heir and of propagating his family is supposed to have been cut off for him. - Elbel 424-426; G. 107, 108.