70. On Contracts

1. Lucas and Lucillus at the Mantuan fairs each bought a hundred sacks of wheat from the same merchant, to send them by ship to Venice for the sake of trading. The one hundred sacks of Lucillus having been placed in the bottom of the ship, the sailor placed certain other goods over them, and then the one hundred sacks of Lucas. Lucillus, making the journey by land, arrived at the port near Ferrara, and there sold his wheat; and lest everything be overturned, he handed over to the buyer the hundred sacks of Lucas, which were in the upper part of the ship, since they were of the same quality and quantity. Afterward the ship, going to Venice, suffered shipwreck, and the wheat perished.

Q. 1. Whether consent is required for a contract? 2. Whether that wheat perished for Lucas, or for Lucillus?

R. To the first. Cf. I. M. 938, 939. - To the second. Clericatus, consulted by a Brescian friend, responded that the sacks perished for Lucillus the seller, whose in reality they were, not for Lucas. The true owner of that wheat which was in the bottom of the ship was Lucillus. But every thing, if it perishes by chance, perishes for its owner. Nor can it be said that an exchange had been made, and therefore that dominion of that wheat had been transferred to Lucas. Since in all contracts, by every natural and civil law, the consent of each party is necessary, L. Adeo, ff. de Pactis; and what is ours ought not to be taken from us without our act, L. Ius nostrum, ff. de Reg. Iur.; and finally he who receives another's thing without the consent of the owner is held to restitution. But Lucas, unaware of the thing and absent, furnished no consent, nor could he furnish it, L. Si et me et Titium, ff. Si certum petatur; and therefore Lucillus, without the consent of Lucas, exchanged his wheat and received it without his act. Therefore. Nor does it avail that if he had not received it and had not exchanged it, it certainly would have perished in the shipwreck of the ship. For a thing is not judged from that which will be, but from that which was or is. For future events that are fortuitous and uncertain do not pertain to the justice or injustice of human actions, which are done concerning the present.

But Molina, on the contrary, responded to Portuguese merchants that the thing had perished for Lucas, the absent merchant. The reason is that Lucillus exchanged the sold sacks with as many of his own from the presumed and reasonable will of his friend, converted them to his own advantage, and sold them in his own name. Hence, although there was not in that exchange the actual and explicit consent of Lucas, nevertheless there was present a tacit and presumed consent, which altogether suffices for the contract of exchange. Indeed, Lucillus the seller acted in good faith, and in those circumstances the consent of absent Lucas to an exchange of a thing of wholly the same nature, quantity, and quality was prudently presumed by Lucillus; and Lucas certainly would have given that same consent if, being present, he had been asked. For you are reasonably presumed to consent to that which does not harm you and benefits another. - Casus Consc. Bononen. Dioeces., year 1778, month of June, case 1.

But precisely this is what seems to have to be denied in the case. For the exchange in the case certainly harms its owner, as is clear from the very fact. For, once the exchange has been admitted, Lucas will no longer be able to reclaim his own thing existing in fact. Besides, owners, and especially merchants, are so tenacious of their own things that in reality consent cannot reasonably be presumed to the onerous contract of exchange, notwithstanding those circumstances of the same nature, quantity, and quality of the things. For there is always danger and fear lest perhaps it is not so; lest someone be deceived by fraud; lest another danger of losing one's own thing arise thence. Nor indeed does the aforesaid reasonably presumed consent seem to suffice for exchange, on account of the same nature, quantity, and quality of the things. For otherwise we could almost continually exchange our things with others' things; and certainly no one can admit this. Nor likewise for presuming consent reasonably does friendship suffice, since friendship is then true and solidly preserved when a friend preserves unharmed the rights of a friend. Lastly, if from the aforesaid circumstances of friendship and of equal goodness and quantity of the merchandise, Lucillus could have exchanged his merchandise with that of Lucas, he also could have done this in the hypothesis that Lucas had committed his merchandise to him to sell in that port, and that he himself was going to sell his own at the same price in Venice. For then, evidently, by exchanging his own merchandise with the merchandise of Lucas, and selling it in his own name in that port, he would thereafter expose Lucas to undergoing a new danger of navigation, which in fact was not lacking, with grave damage to him. Wherefore then indeed that consent of the owner as to exchange could reasonably be presumed, when someone would take upon himself every danger of the thing belonging to another which could arise therefrom, and would not deprive the owner of every advantage which could come thence to him, as in the proposed case. Otherwise Rule 48 of law in the Sixth indeed holds: "Someone ought not to be enriched with the injury or loss of another."

2. Certain nuns handed over various estates in emphyteusis for 99 years to a certain Carolus. The contract was perfected on this condition, that the Apostolic Beneplacitum be obtained. A pact was likewise added that the emphyteuta could rescind the contract after 10 years if the canon established to be paid, 3,225 lire, became too onerous to them. Hence the nuns had recourse to the Holy See, that they might obtain the necessary permission; but Carolus also had recourse to the same, asking that that permission not be given, saying that because of the agrarian crisis the aforesaid canon could not be obtained from those estates.

This cause having been proposed in the S. C. C. on 23 Jan. 1897, it was resolved: "There is no place for diminution of the canon, and the Apostolic indult for confirmation of the contract is to be conceded to the nuns."

The reason is clear, because in every contract, one party not consenting and keeping faith, it is not licit for the other party to withdraw from the contract. But in the case this also is added, that precisely because of the foreseen case of diminution of the value of the estates, the pact of rescission after 10 years was added.

Moreover there is question of a monastery of nuns, namely of a moral person, which by law is equated with minors, to whom favor must always be shown. Hence their acts are altogether to be sustained when otherwise advantage would come to others and loss to them. A. S. S., v. 29, p. 591 seqq.

3. "Vincentius, wishing to sell his house at the highest price to Leo, his neighbor, pretends that he is dealing concerning the sale of this house with Ursinus, an angry, quarrelsome man and dreaded by all the neighbors. Then Leo hastens to offer him the required price, lest he obtain so unwelcome a neighbor.

4. Narcissus had received money as a loan from Gordianus, with an agreement about legal interest to be paid yearly. A year having elapsed, Narcissus, paying back the annual census, says to Gordianus: I am unwilling in the future to grant you anything except four for each hundred; but if you are unwilling, I will restore to you all your money. Moreover, he was not going to accomplish this thus; for he needed the money. Gordianus, not adverting to the fraud, furnishes consent."

Q. 1. Whether fraud invalidates a contract? 2. What as to the cases?

R. To the first. Cf. I. M. 943. - To the second. In the first case, "the contract seems valid as to substance, if Leo indeed gladly acquires the house, as being truly useful to him; for although, the fraud being set aside, he would not have bought it, nevertheless he is not properly considered unwilling. Yet, in this case, at least as to the highest price of the house, the buyer is deceived; hence for that excess of price at least he has a right to compensation. - The contract must be held as invalid if the house is little useful to the buyer, so that very unwillingly, or with great repugnance of the will, he bought it, and indeed uniquely to remove from himself so hateful a neighbor; because then the consent is altogether erroneous, or the error or fraud is truly the moving cause of the contract."

In the other case "one must distinguish. Narcissus does not do injury to Gordianus, and therefore is not held to pay five percent in the future, if he had the money or could have it, so that he might refund the principal; because in reality he yields concerning his right of refunding the principal, and that being refunded, Gordianus perhaps will not receive more. - But if Narcissus does not have the money, nor can have it, he lies and does injury, and therefore is held to restitution, because he does not yield concerning the power of refunding, since he lacks that power; therefore he does not have the right of diminishing the pension, and is held to stand by the contract. Nor should you say that fraud intervenes in the first case, just as in the second: for in the first case the fraud is not unjust, since Narcissus has the right of rescinding the contract; but it is otherwise in the second case. Reuter n. 122; La-Croix n. 635, 1018." G. 783, 744; I. M. 943.

5. "Sidonius has a wicked neighbor, from whom he fears most grave evils. For he heard from him threats of death and arson, several times repeated in the midst of quarrels. To compel him to go away, he buys his house at the highest price."

Q. 1. Whether fear invalidates a contract? 2. Whether the contract of purchase is valid in the case?

R. To the first. Cf. I. M. 944 seqq. - To the second. It is controverted. The purchase of the house carried out by Sidonius does not seem to be valid, because, although fear was not inflicted in order to contract, nevertheless the contract is made only to repel an unjust vexation on the part of the other contracting party. It would have to be said otherwise if that fear came from some third party. Reuter n. 127; G. 786.

But, on the contrary, the contract seems to be valid. For there was in it no bad fraud and deceit on the part of the other contracting party; nor was that unjust vexation ordered to the contract. Wherefore, if the contract were valid when that unjust vexation came from some third party, when it came, for example, from the tenant of the house, not from its owner, why therefore will it be invalid if it comes from the owner himself? The contracting party is indeed held to cease from that unjust vexation, and to remove all inconveniences which proceed from it. But thence it does not follow that the contract is void, but only that it is rescindable. I. M. 944.

6. Bertholdus, at an agreed price of one hundred lire, bought from a fisherman whatever fish he would catch by a casting of the net; and from a shepherd of sheep he bought at the price of as many scudi whatever lambs would be born from the whole flock in the coming month of June. But the fisherman caught nothing, and nothing was born from the flock in that month.

Q. 1. Of what sort must the object of a contract be? 2. Whether in each case Bertholdus ought or ought not to pay the agreed price?

R. To the first. Cf. I. M. 955. - To the second. Bertholdus is not indeed held to pay the agreed price to the shepherd, but nevertheless he is held to pay it to the fisherman. Thus the laws openly define. L. Nec emptio 8, ff. de Contrah. empt., then L. Emptorem 12, in fin., and L. Si iactum 13, de Act. empt. And the reason of the distinction is that in the sale of offspring or fruits a future thing is bought; and therefore, if nothing is born, there is no thing either sold or bought. Hence that sale is as it were conditional, which, unless offspring or fruit is brought forth, is not understood to be perfected, as the said L. 8 splendidly says: Neither buying nor selling can be understood without a thing which may be sold. And nevertheless future fruits and offspring are rightly bought: so that when the offspring has been brought forth, then already, when the business was contracted, the sale is understood to have been made. But, on the contrary, in the sale of the catch of fish or birds the hope of the thing is bought absolutely, which shines forth in the very casting, and is estimable by price; hence whether much or little or nothing is caught, the buyer is held to pay the price: For the purchase is contracted, even if nothing should fall in: because it is a purchase of hope, the same L. 8. And certainly, if you buy the casting of the net in such a way that you seem to buy not the hope of the thing, but the future thing, the same reason will hold as concerning offspring and fruits; as if you say: I will give you one lira for any pound of fish whatever; if nothing is caught, I am held to nothing. For a contract has been entered concerning a determinate future thing; if it will not exist, the contract will not be confirmed, and therefore I will be held to nothing. Giribald., de Contr., tr. 3, c. 2, n. 21. - Casus Consc. Bonon. Dioec., year 1778, month of July, case 1.

And these things hold also under the more recent laws. And thus C. I. 1117 says: "The thing which forms the object of the contract must be determined at least in its species. The quantity of the thing can be uncertain, provided that it can be determined." The thing would be indeterminate as to species, and the obligation would be null, if someone, for example, promised another some animal. Likewise the quantity would be uncertain and could not be determined, and therefore the obligation also would be null, if someone were obligated in general to give wheat to another. For he could give any very small quantity of wheat. - And art. 1118: "Future things can form the object of a contract." Namely, insofar as someone contracts concerning a future thing, or concerning the hope of a future thing. For hope of future things is estimable by price. But in the purchase of the catch of fish, of offspring, and of fruits, the thing is determined in its species; and although the quantity is uncertain and unknown, nevertheless it can in some way be determined from the circumstances. The same are the dispositions of C. G. 1129, 1130; C. H. 1271, 1273. And the same also is the resolution of the case from C. A., which explicitly has a contract of the hope of a future thing as an aleatory contract, and therefore the buyer is subjected to the danger of frustrated hope. Cf. C. A. 878, 1054, 1065, 1276. - I. M. 955.

7. Petrus, an Italian, by a private act in Austria made a donation of a rural estate, situated in Italy, to a certain Austrian friend, an excellent Catholic, dwelling in Italy, upon whom, however, he imposed the burden of receiving into his own house and educating a nephew whom he has, whose mother was altogether incapable for this. But after five years Petrus learns that his friend indeed had taken possession of the rural estate, yet had been unwilling to receive into his own house and educate his nephew, lest he assume for himself that grave obligation; but had given to his mother ten thousand lire, that she herself might take care of the education of her own son. Hence Petrus juridically seeks revocation of the donation.

Q. Whether a prescribed form is necessary for contracts? 2. What as to the case?

R. To the first. Cf. I. M. 934, 936. - To the second. From C. I., Preliminary Dispositions 9: "The extrinsic forms of acts among the living and of last will are determined by the law of the place in which they are done. It is nevertheless in the power of those disposing or contracting to follow the forms of the national law, if this is common in all parts." Hence the donation of Petrus made by private act in Austria is valid. For although from C. I. 1056 a public act is required, nevertheless from C. A. 943 even a private act is admitted. And this has place also as to the celebration of civil marriage. The place governs the act. C. I. 100. From the same C. I., Preliminary Dispositions 9: "The substance and effects of donations and dispositions of last will are reputed to be regulated by the national law of those disposing." Wherefore Petrus rightly could seek revocation of the donation. For from C. I. 1080, a donation made with some burden imposed on the donee is reputed made under a resolutive condition; and therefore the donor can seek revocation of the donation because of the non-fulfillment of that burden. Moreover, the burden imposed by Petrus on his friend was fulfilled neither in its own nature and form, nor equivalently, since it is quite a different thing to give that sum of ten thousand lire to the incapable mother of the nephew of Petrus, that she herself may educate her own son at home, and to receive him into one's own house, that he himself may promote his education. - Cf. I. M. 934, 936.

8. Lucanus sold to Rutilius a house sufficiently large, and situated on the principal street of the city, for 20,000 lire. The contract having been perfected by the consent of each, they determined together that on another day the instrument of the contract would be made by a notary, and that the handing over of the house would be made. Meanwhile Germanus, who wished to buy the house, by chance learns of the sale of the house at so small a price and offers Lucanus 40,000 lire. Hence Lucanus refuses to stand further by the contract previously entered, unless Rutilius pays the price offered by Germanus, saying that the contract is not yet valid, because it had not yet been perfected in legal form. What about Lucanus?

R. From C. G. and from C. A. and from C. H., Lucanus is altogether bound to stand by the prior contract of sale. For it was entered in good faith by the other party and by the mutual consent of each; and from C. G. 1582 it is altogether perfect, nor for its validity is it required that it be perfected by an instrument, either public or private. This instrument is required only for proof of the purchase made. C. G. 1315. Likewise from C. A. 883, contracts are valid whether they are made viva voce or in writing, whether in court or outside court, whether with witnesses or without them. And from C. H. 1450 the sale itself is perfected by the agreement of the parties. - From C. I. 1314, sale in the case must be made by public act or private writing under penalty of nullity. Wherefore, this being lacking, the contract is not yet altogether perfect; but although it is valid, nevertheless it is rescindable. Given so great a ceasing profit and arising damage, it seems that Lucanus can invoke rescission, and that Rutilius ought at least to increase the price by half, or the matter is to be settled through equitable arbitrators.

But, in all rigor and given the circumstances of the case, it seems that Lucanus can invoke rescission of the contract, both from C. G., from C. I., and from C. A., by another title, namely lesion, if, the house having been appraised according to its condition and value at the moment of sale, Lucanus was injured beyond seven twelfths parts of the price from C. G. 1674, 1675; beyond half the part of the price from C. I. 1529, 1530 and from C. A. 1060. - I. M. 934, 936, 1126-1128, 1132; G. 776, 777.

9. Osius bequeathed to Maurinus 20,000 lire, if his widowed mother should marry again. Maurinus having died, his mother passes to another marriage. The sons of Maurinus then exact the aforesaid legacy from the heir of Osius.

10. Thomas, dying, bequeathed to Alphonsus, aged nine years, 20,000 lire, to be handed over to him after twelve years, with legal fruits, that is, when he had attained the 21st year of age. Alphonsus dies in the 20th year of age. His parents reclaim the legacy.

Q. 1. What in general is a condition, and what is its force in contracts? 2. What as to the cases?

R. To the first. In general a condition is a circumstance added to an act, upon which the act itself depends. A circumstance, that is, an event; wherefore, that it be truly a condition it is necessary, first, that an event of this sort be added from outside, for example, if some sick man vows to enter religion if he recovers. Those things which are tacitly present, whether by nature or by law, do not make an act conditional if the same things have been expressed, but they only expressly signify that in the act there is to be observed what must otherwise be observed; for example, that someone be absolved at the point of death, the party having been satisfied; that he contract marriage, the Tridentine form being observed, the banns having been made beforehand, etc.; but these being omitted, it would still be valid. S. C. C., 12 July 1721; Pyrr. Corrad., de Dispens. matr., l. 7, c. 7, n. 11; Sanch., de Matr., l. 8, d. 34, n. 29. Second, it is likewise necessary that from the aforesaid circumstance the act depend, and therefore the right and obligation proceeding thence. Wherefore the event ought to be something future and uncertain. Otherwise whatever is done is either immediately valid or immediately void. Besides, it ought to be knowable in a human way; otherwise it vitiates the act, since it always remains uncertain. But an impossible or base condition vitiates acts among the living; but in acts of last will it is held as not added.

Now then, the event either depends on chance and is called casual, or on the will of the agents and is called potestative, or on both and is mixed. C. It. 1159; C. G. 1169; C. H. 1115. But when it exists or fails, either the act then begins to be valid, and the condition is called suspensive, which is most properly a condition and is understood when condition is used simply; or then the act ceases to be valid, and the condition is called resolutive. While a suspensive condition is pending, it is just as if nothing had been done; while a resolutive condition is pending, it is just as if it had been done absolutely without condition. But when that condition is fulfilled or fails, by that very fact, although it is hidden, it immediately exercises its force; nor is there need of a new consent; and it is retroactive, as if either from the beginning nothing at all had been done, if the suspensive condition is not verified, or it had been done absolutely, if the resolutive condition has no place; and it is valid thereafter, since the right and obligation which follow from it can no longer be revoked. - C. I. 1157 seqq.; C. G. 1168 seqq.; C. H. 1114 seqq.; C. A. 696; I. M. 972, 973.

To the second. Maurinus having died, while his mother still remained unmarried, the legacy became lapsed; and therefore his heirs have no right. For the testamentary disposition of Osius has a condition added which binds its validity to the uncertain event of that condition. Wherefore the disposition remains null if the legatee dies before its verification. I. M. 1032; C. A. 703.

Alphonsus having died, his right to the legacy is transmitted to his heirs. For the testamentary disposition of Thomas has an attached condition which suspends its execution, not its value, and therefore the legatee truly acquires a right; and, if meanwhile he dies, he transmits it to the heirs, even though the condition has not yet been verified. But since the added condition is not verified except after twelve years from the death of the testator, and only eleven have passed, the parents of Alphonsus must wait one further year, that they may be able to claim the legacy. But that time having elapsed, they will be able to claim both the capital and all legal fruits from the day of the death of the testator. C. I. 854, 865, 1172; C. G. 1014, 1015, 1185; C. A. 705; C. H. 881, 882, 1125; I. M. 1032, 1056, 1057.

11. Beatrix, by a donation among the living, handed over to Iulia, her sister, an estate worth 15,000 lire, on the condition that while she herself lived she would pay 100 lire yearly to the pastor, destined for educating poor girls. But, Beatrix having died without a testament, Andreas, brother of Beatrix and Iulia, juridically seeks and obtains rescission of the donation, since the donation had not been made by a legal instrument. Hence, by succession from intestacy, half of the field remained to Iulia, and the other half was ascribed to Andreas. But Iulia, having recovered by price the other half of the estate from which she had been evicted, is urged by the pastor to pay the 100 lire attached to the donation; by other consulted men she is obligated to pay back only 50 lire; by others she is freed from every burden. - What about Andreas and Iulia?

R. Andreas, seeking rescission of the donation, seems to act by right, since he relies on a just disposition of law. Wherefore, just as, speaking of itself, the nullity of a testament is legitimately invoked when legal formalities have not been observed, so also the nullity of a donation is legitimately invoked when the form of law has not been observed.

Iulia seems to be held to nothing. For she is not held to pay 100 or 50 lire by title of succession; for she succeeds from intestacy in exactly the same way as Andreas her brother, who certainly is not held to pay those 100 or 50 lire by this title. Nor likewise is she held by title of donation; for the donation was made void, and Iulia lost the estate by this title. Nor also is she held by title of purchase of the other part of the estate. For that part belongs to Andreas, who sells it without such a burden, since he himself does not have such a burden. Finally, she is not held by reason of the estate itself possessed, partly by title of legitimate succession, partly by title of purchase. For that pension to be paid by Iulia is, from the case, a merely personal obligation, since it is to be paid only by Iulia, while she lives, and by no means real, affecting the estate itself. Wherefore Iulia is held to pay neither 100 nor 50 lire. G. 805.

Nor indeed does it avail in the case to object that there is question of a pious donation; and that, as a pious legacy would be valid if the will of the testator were certainly established, so also a pious donation is valid in the case, since the will of the donor is certainly established. For the reason of a legacy and of a donation in the case is unlike. The legacy would be valid, because the legacy is immediately acquired for the legatee from the death of the donor. I. M. 1056. Similarly a pious donation would be owed if, in reality, the donation had been made directly to the pious cause itself, and the thing itself or the estate in the case had been burdened. But no donation was made to the pious cause; the donation was made to Iulia, upon whom the burden was imposed as a condition of retaining the donation, and, by title of the same donation, of furnishing the aforesaid sum to that pious work. But when the donation ceases, by that very fact the condition of the donation ceases, or the burden added to the donation itself and uniquely inhering in it.

12. Titius, a priest, about to make a testament, promises a rich legacy to Bertha, his niece, a most pious girl, if she swears that she will remain a virgin through the whole time of life; and Bertha immediately furnishes this. He further promises to Caia the maidservant a thousand lire by title likewise of legacy, provided she diligently serve his sick mother and marry, only after her death, another nephew, Sempronius, who nevertheless, unknown to the uncle, had already taken a wife. Faith also having been had from Caia, Titius makes the testamentary tablets, in which, however, he inscribes the promised legacies without any condition, and shortly afterward yields his life. - But after the uncle's death, Bertha most miserably loses her virginity. Caia, however, falls into a long-lasting illness, by which she is impeded from offering service to the mother of Titius. Finally Sempronius, who after the death of the mother of Titius had remained a widower, refuses to take Caia as wife.

Meanwhile, however, both Bertha and Caia take no care at all to restore the legacies.

Q. What as to the case?

R. The testamentary disposition of Titius, by title of legacy, can be considered in two ways. For it can be looked at as a disposition under a mode, and as a disposition under a condition. If it is considered as a modal disposition, then the dominion of the legacy was transferred absolutely to Bertha and to Caia, with an obligation for Bertha of preserving virginity, and for Caia of offering assistance to the mother of Titius and of marrying Sempronius. Wherefore, although Bertha most miserably lost her virginity, she is not held to restitution of the legacy. Likewise, although Caia could not offer assistance to the mother of Titius, nor can marry Sempronius, she can altogether keep the legacy. And the disposition of Titius seems to have been modal rather than conditional. For he indeed promised the legacy under condition of oath and of counter-promise; but then he inscribed the legacy in the testament without any condition. Wherefore the legacy seems rather to have been made under a mode than under a condition; namely it is understood to have been made implicitly under that burden and obligation, previously undertaken by Bertha and Caia. But that disposition was made by Titius under the burden and obligation of virginity for Bertha, and of furnishing service and marriage for Caia, in such a way that evidently he principally intended to provide for his pious niece and faithful maidservant.

If it is considered as a conditioned disposition, then, as regards Bertha, the condition of imposed virginity is evident in a twofold way. For a legacy under the condition of preserving celibacy, or of preserving virginity, can be considered as a merely profane legacy, and as a legacy of a pious cause. If it is considered as a merely profane legacy, this condition by civil law is held as not added. Thus from Roman law and from the Italian, French, Spanish, and Austrian Code 700. Theologians do not reject this law, and admit its force also for the forum of conscience on account of the reason which Roman Law brings, because namely it is expedient for civil society to be multiplied by offspring. Hence, although Bertha lost her virginity, the legacy can be kept in conscience.

But the legacy of Bertha can also be considered as a pious cause, and therefore not according to civil laws, but according to Canon Law. The reason is that, if marriage is honorable and useful to civil society, virginity, which excels marriage, is most useful to ecclesiastical society on account of the excellent honor of its virtue, and on account of the state to be held in the greatest price in the Church. And since in the case there is question of Titius the priest, of Bertha his most pious virgin niece, of the solicitude of Titius that the added condition of virginity be observed, whence he wished Bertha to furnish an oath, it is certainly clear that Titius looked to the honor and excellence of the state of virginity in the Church. Besides, from the circumstances of the case there is no doubt that Titius efficaciously intended virginity. But by civil law, the condition of virginity is held as not added. Therefore it must be said that Titius looked at it rather according to the laws of the Church and

Canon Law.

Now theologians, speaking of this condition added in legacies, in relation to civil law, in order to defend that law, say that Canon Law is silent and says nothing, and therefore that someone can stand by that law in conscience. But Canon Law in reality is not altogether silent; for it is Catholic doctrine that there is a preeminence of virginity with respect to marriage. Therefore, if the case is to be decided from Canon Law and ecclesiastical authority, it does not seem that this condition would always have to be held as not added. Indeed, if, because widowhood is in honor, its condition added by a deceased spouse is to be preserved, by law not only civil but also canonical, how can the condition of virginity, which is in the greatest honor in the Church, be held as not added?

Nevertheless Bertha can keep the legacy and is not held to any restitution, even according to this consideration less favorable to Bertha. The reason is that the added condition of virginity, in the obvious sense, is not understood of excluding any sin whatever, even hidden, against chastity, but is understood of excluding marriage, and of excluding a publicly scandalous life. For that effect of honor and estimation to be had among men concerning the state of virginity in the Church, the saying of Roman Law holds in the case: Not to be, and not to appear, is the same. L. 77, de Contrah. empt. Wherefore, notwithstanding that Bertha most miserably lost her virginity from human frailty, she by no means loses ownership of the legacy. For she is still reputed and esteemed a virgin. Cf. G. 855; Scav., l. 2, n. 539; D'Annib., p. 2, n. 359.

As regards Caia, she also can keep the legacy and is not held to restitution. For the first condition concerning assistance to be offered to the mother of Titius, independently of her will, became impossible. The same must be said of the other condition, which also is impossible, because marriage cannot be made without the consent of the other; and besides, it is contrary to good morals, because forced marriages are of bad outcome. Moreover, the things are not in that state in which the testator supposed them; since then, when Titius made the testament, Sempronius was not unmarried but married, while now he is a widower. Finally, Titius wished to provide for his mother by the assistance of a faithful maidservant, and for his nephew by the companionship of a faithful wife; then also he intended in a special way to favor the maidservant herself by the concession of a legacy. Wherefore Caia can keep the legacy. - I. M. 972, 1032; G. 787, 788, 1854; C. A. 698, 709, 710.

13. Aurelius instituted Blasius, his cousin, as heir, leaving to him an inheritance of ten hundred thousand lire, under the burden that, during his life, on the anniversary day of his death, he would distribute 10,000 lire to twenty poor girls for twenty dowries. Blasius, hindered by a grave business, was not able in one year to fulfill this obligation. Hence he is very doubtful whether he has lost the inheritance.

Q. What as to the case?

R. The testament of Aurelius is under a mode. A mode is an addition made to an act, by which he who gives something in any way to someone demonstrates what he wishes to be done thence, as, for example, if someone bequeaths an estate to a pastor, that he erect an orphanage there. It agrees with a condition insofar as it adds an obligation for the advantage either of the giver, or of the receiver, or of a third party. It differs from a condition because the latter suspends the act and the obligation, while a mode does not. But the intention of the giver must be weighed; for, if the added obligation, from the intention of the donor, is principal, the other must furnish it, unless he is impeded; and therefore the donation becomes lapsed, and the donee is held to restitution. But if the added obligation is secondary, the donation does not fall, but can be made void by the donor. In the former case the mode falls back into a resolutive condition; in the other case it is a mode properly, insofar as it modifies the principal act, a burden having been added. As a condition is accustomed to be expressed by the particle if, a cause by the particle for or on account of, so a mode is accustomed to be expressed by the particle that. Lessius, l. 2, c. 18, n. 124; I. M. 974.

Moreover, although the burden imposed on Blasius was the principal end of the testator, nevertheless the testament of Aurelius did not for this reason become lapsed, since Blasius was legitimately impeded. Wherefore Blasius would then be held only to satisfy the imposed burden not yet fulfilled. But from the case it evidently appears that the imposed obligation was the secondary end of the testator. For, since Aurelius left a very rich inheritance to Blasius, and imposed on him the burden of distributing yearly only 10,000 lire in dowries, and this burden does not burden the inheritance in perpetuity but only during his life, the thing is evident that Aurelius principally intended to favor his cousin. Wherefore let Blasius fulfill the burden omitted because of an impediment, and he can altogether keep the inheritance. Lessius, l. c.

14. Proculus gave to his brother as a loan the sum of 5,000 lire. Exercising trade together with his brother, but not in partnership, every year they weighed together the accounts of what had been given and received. Nevertheless Proculus never sought from his brother restitution of the sum. Proculus having died, the heirs seek it; to them the brother of Proculus opposes the remission of his brother.

Q. 1. How does the obligation of contracts cease? 2. What as to the case?

R. To the first. Cf. I. M. 966. - To the second. The whole resolution of the case depends on a remission tacitly made by Proculus to his brother. This indeed is admitted by Common or Roman Law, and precisely for the case set forth, in L. Procula 26, de Probation. It is indeed a certain presumption of law; but this is not admitted by C. I. 1279 except in one only case, namely when the creditor has returned to his debtor the original title of the credit. The same is had in C. G. 1282; and in the following article it is had that the same presumption is present if the engrossed copy of the title, la grosse du titre, has been remitted, but proof to the contrary in this case is admitted. Similarly, remission is not presumed from the fact that the creditor returned the pledge or freed the surety; for these are accessories, C. I. 1880, 1383; C. G. 1286, 1237. Therefore, the presumption of law having been removed, nothing remains except presumption of fact. But from the case no indication of this presumption is had, except the fact that Proculus did not seek restitution of the loan.

There could have been several causes of this fact besides remission. Wherefore remission simply cannot be presumed from it, and therefore the case would have to be weighed more in particular, and the circumstances which perhaps were present favoring that remission must be investigated. As the case lies, there seems to stand in the way of a remission of this sort the fact that Proculus indeed exercised trade together with his brother, but not in partnership and in common; there seems to stand in the way the diligence with which he weighed yearly the accounts of what had been given and received. But that he omitted to repeat the loan could well have happened because Proculus knew well that restitution of the loan, even if he did not seek it, was sought by the law itself and was vindicated for himself and his heirs; and therefore, because he was certain of this vindication, Proculus could consider it useless to urge restitution.