93. On Advocates and Notaries

1. Hipparcus, an advocate, undertook the defense of the case of a certain noble man, who, besides the ordinary honorarium, promised him besides a thousand lire, if he should obtain victory. Hipparcus without delay defended the case and in fact obtained victory with great applause.

It is asked: Can Hipparcus licitly receive, besides the ordinary honorarium, the thousand lire promised to him?

R. In the affirmative. For first, that extraordinary stipend is not demanded by the advocate, but is promised to him spontaneously. But no one is held to refuse what is spontaneously offered to him by others. Besides, since the advocate obtained the case with great applause, he must have applied extraordinary study and diligence; or at least he must be an advocate of no ordinary talent and name, and under this head he could also have received and demanded a non-ordinary stipend in comparison with other common advocates. Indeed, even for the victory alone he could have received and demanded a stipend beyond the customary one, even prescinding from his extraordinary study and diligence, from his name and reputation. The reason is, first, because if, with all circumstances considered, success had appeared very doubtful, so that equality between hope and fear was preserved, then the contract would have been aleatory in part. Gury observes this well, n. 9. A further reason is that, once victory has been obtained, the advocate furnishes to his client a thing most useful and estimable by price. Wherefore it is not true what the same Gury has in the place cited, namely that the advocate “cannot demand a stipend beyond the customary one, even for the case in which he is to obtain the cause. For victory adds nothing to his labor and cares, nor does he receive payment for victory, but for study and diligence. Therefore what he receives for victory obtained he receives unjustly, and he must restore it.” Certainly victory adds much to the work and labor of the advocate. It is victory which makes his work and labor truly useful and most estimable by price; victory is intimately connected with the defense itself. I. M. 40.

2. Homobonus, a Catholic notary, is compelled by reason of his office, under penalty of prison, to draw up the deed of sale and purchase of a certain house and small garden annexed, formerly the Convent of the Capuchin Fathers. A certain Tiburtius bought the house and garden from the State Domain, and now sells the aforesaid Convent to a certain Curtius. Homobonus anxiously asks his confessor whether he can draw up an act of this sort.

It is asked: What as to the Case?

R. It seems that Homobonus can draw up the aforesaid act. For certainly the matter, on the part of the notary himself, is not intrinsically evil; since Tiburtius and Curtius can very well seek due pardon in this matter, if they wish, from the Apostolic See. Besides, there is not question of a direct spoliation of the Church; since indeed the aforesaid goods, already usurped by the Government, have been sold. Rather, there is question of the mere transmission of the same goods from one possessor to another; and so that act of the notary is not as if consummating and perfecting the unjust spoliation, which has already been perfected; nor does he in any way confirm or increase it by transmission of possession, just as also the notary refusing to draw up the act does not remove or weaken it; for there will not be lacking another wicked notary who will draw up the act. Lastly, if there is still any difficulty, certainly in the Case the presumed consent of the Church is not lacking. For if, in a similar case, as regards the goods of private persons, the reasonably presumed consent of the owner is not lacking on account of the grave private harm to the notary and the grave injury to society, much more will the presumed consent of the Church not be lacking in the Case. It is certainly expedient to seek this explicitly, on account of public edification. But it is easily granted on account of the reasons already brought forward. — Cf. Gennari, Consultaz. Morali etc., p. 1, Cons. 16; I. M. 19.

3. Rutilius, a notary, clearly notices that in the contract of sale of a certain house the true price is not declared by the contracting parties, but a lesser one, namely so that they may pay less tax. Rutilius completes the deed and enters the aforesaid price in it.

It is asked: What as to the Case?

R. Rutilius does not seem to be disturbed. For he himself is not placed in charge of taxes, but is a public official appointed for drawing up acts. Besides, the contracting parties themselves probably do not sin against justice. For the act to be drawn up is only for confirming the contract and furnishing security for the thing in case of eviction, or of another judicial suit. Wherefore there is no obligation of conscience to declare the true price by force of that act to be drawn up. Nor indeed is there present an obligation, by force of the imposed tax, to declare spontaneously the true price of the thing, since the practice now is that taxes are not paid unless they are demanded. Nevertheless, there is an obligation to pay the fine, if the matter is detected, and not to tell a lie. — G. v. 1, nn. 744–756; v. 2, n. 23; I. M. v. 1, n. 232.