IV. On the Modes of Acquiring Ownership by Private Will

What are a contract and a pact? - A contract is: an agreement by which one or more oblige themselves to one or more to give or to do something. Agreement, namely by determination and consent in the same thing. To give or to do, and therefore also not to give, not to do. Hence ownership is acquired by private will through various contracts. C. I. 1998; C. G. 1101; C. H. 1254; C. A. 861; L. 707; Lugo d. 22. s. 1. A pact, taken broadly, as it is commonly accepted, is the same as a contract. Taken strictly, it is distinguished from a contract. For a pact is the consent of two or more in the same determination; but a contract is a reciprocal or mutual pact, which on both sides of those making the pact gives birth to an obligation. L. 1, 7 de Pactis D.

Of how many kinds is contract? - A contract is manifold: 1. Unilateral, or giving birth to an obligation in only one contracting party; and bilateral or synallagmatic, giving birth to an obligation in both contracting parties. C. I. 1099, 1100; C. G. 1102, 1103; C. A. 864. A unilateral contract commonly comes under the name of act; and thus it is called an act of donation, act of succession, etc.

2. A contract is gratuitous if it yields to the utility of only one party; it is onerous if the utility of both parties is intended. A gratuitous contract can be unilateral, as donation, or bilateral, as loan for use. An onerous contract is always bilateral. C. I. 1101; C. G. 1105, 1106. - Those things which are acquired from a gratuitous act are said to be acquired from a lucrative cause, for example by donation, legacy, inheritance; but those which are acquired from an onerous act are said to be acquired from an onerous cause, for example by purchase.

3. An onerous contract is either commutative, when each contracting party is obligated to give or do an equivalent; or aleatory, when an equivalent of this kind depends on an uncertain event of gain or loss for each party. Therefore in the former there is contracting about some thing; in the latter there is contracting about the probable hope of acquiring a thing. C. I. 1102; C. G. 1104, 1964.

4. A contract, whether onerous or gratuitous, is either solemn, which is perfected by the formalities prescribed by law, as the contract of marriage before the pastor and witnesses, or a donation performed by a public act; or simple, which is subjected to no peculiar form of law, as sale, lease, mandate, perfected by the private consent of the contracting parties.

5. It is likewise either clothed, which besides the agreement of the parties has some other support, by reason of which an action arises in the external court, for example if delivery of the thing has been made, if a writing of the contract has been made; or naked, which besides the pure pact has nothing else, whence from it regularly no action is granted in the external forum. L. 708; Lugo d. 22. nn. 12-14.

6. It is besides either named, which has its own proper name, as sale, or unnamed, which lacks its own proper name. All unnamed contracts are reduced to one of these four: I give that you may give; I do that you may do; I give that you may do; I do that you may give. Therefore an unnamed contract is real, not merely consensual. Cf. 942. L. 707; Lugo d. 22. s. 2; C. A. 921. From C. I. 1103 and C. G. 1107, all contracts, whether named or unnamed, are subjected to the general rules of contracts.

7. Finally, a contract is either explicit or formal, "which is made with the formal and express agreement and obligation of the parties, as purchase, sale," or implicit or virtual, "which is made only with virtual and tacit agreement and obligation; as, for example, when someone undertakes guardianship or another office, he tacitly obliges himself to furnish those things which by law or custom are annexed to such office. Hence such an undertaking is called a quasi-contract." Struggl 2; C. I. 1140; C. G. 1371. - Cf. here 933, 942.

Note: In Roman Law contracts were divided into contracts of good faith and contracts of strict right. A contract of strict right is one in which that alone is to be considered concerning which express agreement has been made. A contract of good faith is one which is taken not according to the rigor of words, but according to a benign interpretation. Gratuitous contracts are recalled to the former, which received a strict interpretation according to the letter; onerous contracts to the latter, which received interpretation from what is good and equitable. From C. I. 1124, 1131, 1134; C. G. 1135, 1156, 1159, all contracts are of good faith, and must be executed with due equity.

In Roman Law there were contracts which, although for their perfection they did not need things or delivery, nevertheless by disposition of Law needed words; that is, beyond consent explained in whatever way, they needed a certain formula of words, without which there was no such contract as was signified in Law by such a name. This especially proceeded in stipulation, which had to be made in the formulated words of Law, one asking: do you promise that you will give or do this? and the other responding: I promise. Inst. 1. 3. t. 16 de Verbor. oblig. in princ.; L. 5 § Stipulatio ff. e. t. But he who asked was customarily called the promissor. By more recent Law this obligation of words has been altogether removed, and by Roman Law itself that "superstitious formula of Law received moderation." Lugo d. 22. nn. 20-22. At present stipulation is a common name for all pacts or contracts.

Therefore to stipulate today is almost the same as to make a pact, and he is said to stipulate toward whom another contracts an obligation. Regularly no one can stipulate in his own name except for himself, but he can also stipulate for another in his own name, namely for the advantage of another, for example: I give you 100,000 lire on this condition, however, that you give Caius one thousand lire annually during his life. C. I. 1128, 1134, 1137; C. G. 1119 ff., 1165, 1973; C. B. 328 ff.

What about the transfer of ownership through contracts? - To acquire ownership of another's thing, there is need of a title transferring ownership, such as inheritance, legacy, donation, purchase and sale, and other similar contracts.

But from positive law there is sometimes need of public instruments which have a determinate form from positive law itself, as in donation of immovable things and in dotal pacts. C. I. 1056, 1382; C. G. 931, 1394. Sometimes, however, private instruments suffice, as in alienations of immovable things, or of rights cohering with these. C. I. 1314. And these instruments do not hold unless furnished with the signatures of the parties. C. 1316, 1321; C. G. 1318, 1323; C. H. 1226, 1228, 1229. Nor indeed are these same instruments required for the validity of the act itself, but only for proof, unless otherwise at times has been provided by the law itself, or it has been agreed among the parties that the act not be valid as long as it has not been consigned and signed in writing. L. 708. Cf. C. I. 1. 3. t. 4. c. 5. rubr.; C. H. 1278-1280; C. A. 883-887. Likewise, per se, delivery is not needed for the transfer of ownership, but the consent alone of the owner transferring to another and the latter's acceptance suffice. Thus from C. I. 1225, 1448, 1538; C. G. 1138, 1583, 1689. But it is needed from Common Law, L. 20. C. de Pact.; C. A. 425; C. H. 609, 1095. Nevertheless, in order that alienation of movable things be valid as to third parties wishing to vindicate the thing for themselves, delivery is needed. C. I. 707, 1539; C. G. 1689, 2279. But in order that alienation of immovable things be valid as to third parties, in the cases determined by laws transcription is needed. C. I. 1932, 1933; C. G. 939, 941; cf. C. A. 440, 444. And in private instruments, as to third parties, a date legitimately inscribed in the public register is needed. C. I. 1327; C. G. 1328. Hence if the same thing has been sold or leased to several persons, he prevails who first transcribed or registered. Therefore he who sells to another a thing sold to one, and who first inscribes or registers it, is liable for damage, because he injures the acquired right of the first buyer. And the other buyer, who knowingly and prudently buys and transcribes, likewise injuring the acquired right of another, is liable for damage. From C. He. 656, 657, 714, for acquiring ownership of lands inscription in the land register is required. A contract transferring ownership requires for validity a public act. Dispositions mortis causa and matrimonial agreements must be made in the forms prescribed from succession and matrimonial law. For the transmission of movable property, transfer of possession to the acquirer is necessary. From C. B. 313, 873, 925, 929, for transfer of ownership of immovables there is need of inscription in the land register; for transfer of ownership of movables delivery is required.

Note: Delivery is "the transfer of a thing, right, or possession from person to person." Through delivery ownership of a thing can be acquired; this nevertheless is not to be understood as if delivery alone without any other prior disposition of the owner transferred ownership, but "if sale or another just cause has preceded." L. Numquam 31. ff. de Acquirendo rerum dominio. - Now delivery for the transfer of ownership is indeed not necessary by natural law; but if it is necessary, this is because it is required by positive human law, namely so that contracts may thus be completed and uncertainty of ownership avoided.

But physical delivery of the thing is not necessarily required; moral delivery suffices, and it can be done in diverse ways, just like possession. Cf. C. I. 1463-1466; C. G. 1604-1607. In Roman Law delivery is ordinarily necessary for acquiring ownership of things. Ordinarily; for 1. delivery is not required precisely for a right to a thing, as is clear in mortgage and other naked contracts; indeed, of things which belong to no one, even a right in the thing, or ownership, is acquired without delivery, or by mere apprehension and occupation. 2. There are certain cases excepted by law, in which ownership is transferred before delivery. Such cases from the same Roman Law are chiefly six: 1. In ecclesiastical benefices, C. Si tibi absenti de Praeb. in the Sixth. 2.

In inheritance, L. 23 Dig. de Acquir. vel amitt. possessione. 3. In legacy as to a thing determined individually, L. 64 Dig. de Furtis; L. 86 Dig. de Legatis et fideicommissis. 4. In those things which are sold, donated, or left to Churches, Monasteries, Hospitals, or for the Redemption of captives, L. ult. C. de Sacrosanctis Ecclesiis. 5. In a donation made from a pact that the donee give food to the donor; for, if these are denied, ownership returns by the fact itself to the donor. L. 1. C. de Trad. quae sub modo. 6. In those things which by delict are by the fact itself adjudged to the treasury. - Inst. 1. 2. t. 1. §§ 40, 44.

Is a contract valid as to the forum of conscience if it is destitute of the solemnities prescribed by positive civil law? Solemnities are certain forms of making a contract from the prescription of law, for example that it be made before so many witnesses, in writing, etc. Some are accidental, which pertain only to a certain greater completion, for example that a testament be made on sealed paper, and therefore, if omitted, they do not invalidate the act; others are substantial, which are considered to pertain to the substance, namely when they have an invalidating clause joined to them, as, for example, that a holographic testament be signed by one's own hand. The question is raised about these. There is question about civil law. For as to canon law, the prescribed solemnities of law are altogether to be observed; among these, in alienations, the Apostolic Beneplacit holds the chief place, without which alienations of things of the Church are null. But cf. V. 2. n. 1209. The same is to be said about the form formerly established by Trent, sess. 24. C. I. de R. M., and now by the Decree Ne temere, as to the validity of marriage. Cf. V. 2. n. 1206. But there is question about the contracts themselves, or about the obligations and rights arising from them. There is not question about the acts of contracts, or about the instruments by which contracts are consigned; for acts of this kind rather regard the external forum. Now acts must be done, in order to be valid, according to the forms prescribed by law. If done otherwise they are invalid; nevertheless they can hold as private writings, if they are furnished with the signatures of all the contracting parties. C. I. 1310, 1311, 1316; C. G. 1318, 1339. "A threefold probable opinion is given. The first denies; because laws invalidating such contracts are founded on a presumption not only of deceit, but also of danger; and therefore human law can altogether take away the natural obligation of a contract entered upon... The second affirms... because in those contracts human law, although it denies a civil action, nevertheless does not take away the natural obligation, for which consent alone indeed suffices. The third teaches that in these contracts the possessor is to be preferred until by sentence of a judge he is condemned to restore... This opinion I think not only more probable, but altogether to be held in practice, because... since possession grants a certain right, the possessor cannot be despoiled of the thing unless the right of another is established." L. 711, 927-929.

The first opinion in itself seems more conformable to reason. For not only as to Roman Law, but also as to more recent Laws, what Lugo observes holds, d. 22. n. 252: "The words of the law seem to sound this, nor does Trent, sess. 24. C. I., use almost other words when it invalidates clandestine marriages; nor can words more apt to signify this be used than to declare antecedently the contract null and invalid... If only invalidation of the contract in the external forum were posited, the law would be considered of little utility, since it would serve only to foster the iniquity of him who, conscious of the value and obligation of the contract, would still attempt to despoil a just possessor, taking away because of defect of solemnity what in the forum of conscience could not be taken away from him. And indeed it would be hard to compel judges to favor this unjust petition, when it is established for them that the contract before God held, and that the adversary cannot without sin ask what he asks."

The second opinion seems more conformable to the context of more recent laws. For C. I. 1104; C. G. 1108; C. B. 305, 313; C. H. 1258, 1261, 1278, 1279, 1300; C. L. 643 did not enumerate the forms of contracts among the conditions essential for the validity of a contract. Therefore by these forms they seem to intend only this, namely to determine the instruments or means by which the will of the contracting party can be established before judges. Gousset in the cited article and in art. 1101. Indeed public instruments do not seem to be required explicitly for the validity of the act, but only for proof. C. I. 1. 3. t. 4. c. 5. s. I. rub., 1313, 1314, 1932. 8; C. G. 1315 ff., 1335, 1338; C. H. 1278-1280. From C. A. 883, except for cases determined by law, contracts can be made in whatever form, without diversity of obligation arising from this. From C. H. 1258, contracts are perfected by consent alone.

The third opinion in reality is not distinguished from the first and second, but, admitting both, draws the corollary of both. For the possessor can be both he whom a testament favors, although destitute of legal forms, and he whom the defect of legal forms favors. Then in reality this third opinion would be distinct from the first and second if it were said that the aforesaid laws do not render the act invalid by the law itself, but liable to invalidation by the sentence of a judge, which someone will be able to invoke at his own discretion; and then, as the same St. Alphonsus says, l. c., "without doubt the possessor is bound to stand by the sentence of the judge, if he is condemned to restore." Thus many interpret more recent invalidating civil laws. And it cannot be denied that many such laws in truth do not render an act null in fact, but only rescindable and to be invalidated by the sentence of a judge.

Is someone bound to restitution if, following a probable opinion, he prevents the other party from approaching the judge, who would condemn him and oblige him to restitution? R. "Affirmatively, if he impedes by force or fraud; otherwise, if in another way." L. 888. The first reason is that he injures the right of another; the second, however, that then he legitimately pursues his own right.

What are the essential conditions of contracts? - There are four essential conditions for validly contracting: consent of the party who is obligated; capacity for contracting; a certain object which is the matter of the contract; a licit cause of obligation. C. I. 1104; C. G. 1108; C. H. 1261.

What is consent of the contracting party, and what sort must it be? R. To the first: Consent here is not a simple counsel or purpose of the mind, but a promise of a thing to be given or done, and on each side it must concern the same contract and the same thing. There must be a promise on one side, acceptance on the other, in a unilateral contract; and besides a repromise, in a bilateral contract. When the contract is of itself bilateral, the repromise is tacitly present in the very acceptance, as in sale and purchase. But, if the contract is not of itself bilateral, repromise is not included in the acceptance, as, for example, in betrothals; for someone can accept a promise without repromising. Indeed even in the bilateral contract itself there is not always repromise, and the contract is perfected by its very execution, for example if you write to a merchant that for such a determined price he should send you ten candles, and he immediately sends them.

R. To the second: Consent must be: 1. Internal, for the obligation of contract arises from the will alone of the contracting party. 2. Free and fully deliberate; otherwise the will would be imperfect, and could not give birth to a perfect obligation. 3. External, for it must be manifested to the other party; otherwise one cannot oblige himself to another. But the offer must be manifested to the other accepting party by the same offerer, or by another, but in his name or by his mandate. It need not, however, necessarily be express; tacit consent suffices; and contracts are everywhere made tacitly. 4. Mutual, for in order that someone oblige himself to another by his own will, it is required that this other accept that will. 5. Nor indeed is it necessary that the consent of each party be elicited at the same time. For the consent of one, once given and not revoked, morally perseveres; hence, when the consent of the other accedes, the contract is immediately perfected. - C. I. 1108; C. H. 1262, 1265; C. A. 862, 863, 869; C. B. 116, 117, 130, 147-149, 153; C. L. 647 ff.

You will resolve: He who fictitiously consents to a contract does not contract, and therefore no ownership is transferred. But the deceiver is bound in conscience to make the deceived party indemnified, if the other suffers damage from this, or has already furnished his own part, where the contract is onerous; and therefore, if no other means is present, he must provide internal consent and stand by the contract. L. 709, 711; C. A. 877; C. B. 122. But he will be able to supply consent as long as the other has not retracted his own, although this one is ignorant of the defect of consent of the other party. H. A. 93.

Interpretative consent does not suffice for contracting, because it is consent which is not yet present, and therefore cannot give birth to the obligation of contract. In gratuitous contracts, by natural law it is not required that acceptance become known to the one promising. For, when a thing is offered to another, by this other's acceptance it immediately becomes his as though a thing belonging to no one. - When there is question of onerous contracts, the contract is regularly not perfected until the acceptance of each party also becomes known to each party; and therefore someone can withdraw before this.

The reason is that, just as my will of obliging myself to you, not yet manifested to you, does not oblige me to you, so your will of obliging yourself to me, not yet manifested to me, does not oblige you to me, and consequently neither you nor me. Nor indeed is it presumed that I wish to be obligated to you before it becomes known to me that you wish to be obligated to me. Regularly, namely unless someone truly wills himself to be obligated, and the contract to be perfected before the acceptance of the other party has been manifested; for example, if someone asks from you by letter for money on loan, with such interest to be paid, and you immediately send it to him, the contract of loan will be perfected, and he will be able immediately to dispose of the accepted money.

For the very offer of paying interest is a certain hypothetical acceptance of the consent of the other contracting party; by which consent that acceptance becomes absolute. Lugo d. 22. nn. 26, 27, 33, 34; d. 23. n. 70 ff. From C. B. 145, 151, 153, the offerer of a contract is obligated by his very offer. But the contract is perfected by acceptance of the offer, without this acceptance first having to be declared to the offerer, and although meanwhile the offerer has died. - C. H. 1262: acceptance by letter does not oblige the offerer except after it has come to his knowledge. C. L. 653: the proposer is obligated to keep the promise.

Does a contract entered upon with the intention of contracting, but without the intention of obliging oneself, or of fulfilling it, hold? - R. To the first: "The first opinion affirms with Lessius, Soto, Dic., Pont., etc. among the Salmanticenses... But the second and more probable opinion denies... The reason is that a condition added contrary to the substance of the contract invalidates the contract." L. 710. For what is it to contract, unless to oblige oneself to another? R. To the second: Affirmatively. The reason is that the will of obliging oneself and the will of not fulfilling the contract can stand together. L. 1. 6. nn. 832, 833.

Is every contract intrinsically perfected by mutual consent alone, externally manifested and accepted, without delivery of the thing? - Some contracts are those which, speaking per se, are perfected by mutual consent alone, manifested outwardly either by words, or writings, or another sign, and therefore are called consensual. The reason is that they import nothing else than the mutual agreement of the parties, such as lease, sale, mandate. But some contracts are those which, speaking per se, are perfected only by delivery of the thing, and are therefore called real.

The reason is that, besides that mutual agreement of the parties, they import the very delivery of the thing, such as loan for consumption, loan for use, deposit. C. I. 1837; C. G. 1919. To this second class of contracts, which are perfected by the thing itself, belong all unnamed contracts, which are not completed unless delivery of the thing follows on the part of one. And indeed without delivery there is not a loan for consumption, but rather a promise of a loan for consumption, etc. Speaking per se; for "in the forum of conscience one must stand by the intention of those contracting." L. 708; Lugo d. 22. s. 3.

From C. G. 1138, "The obligation of delivering the thing is perfected by the consent alone of the contracting parties. It makes the creditor proprietor, and constitutes the thing at his risk from the very instant when the thing ought to have been delivered." Thus also from C. I. 1125. - From C. H. 1095, 1258, contracts are perfected by mere consent, and immediately oblige to execution. As soon as the obligation of delivering the thing arises, the creditor has a right to the fruits of the thing. But a right in the thing is not acquired except by delivery of the thing. - Inst. 1. 3. tt. 14, 15, 16, 22, 23.

Do error and fraud invalidate a contract? A twofold fraud is distinguished: good fraud and bad fraud. Good fraud is nothing other than a certain skillfulness in acting, and in this sense Ulpian said that it is lawful for contracting parties in the price of purchase and sale naturally to circumvent one another, namely within the limits of the just price. Bad fraud, of which there is question at present, is: shrewdness, fallacy, contrivance, employed for circumventing, misleading, deceiving another. Shrewdness is found in keeping silent, fallacy in lying, contrivance in doing. C. H. 1269; C. L. 663. "A contract is null if fraud or error concerns the substance of the contract, because actual consent is lacking."

L. 714; C. I. 1108, 1110; C. H. 1266; C. L. 659, 660; C. A. 871; C. G. 1110; C. B. 119. If error or fraud concerns the quality of the thing, and has not given cause to the contract, the contract is valid; for consent is not lacking concerning the object itself of the agreement. C. I. 1110; C. H. 1270. If error or fraud concerns the quality of the thing, but has given cause to the contract, it is disputed. The first opinion affirms. "The reason is that although quality in physical being is something accidental, nevertheless in moral being it has the character of substance. Yet the opposite is commonly handed down by doctors and is more probable...

The reason is that this contract is not invalid either by positive law (whether Roman, or Italian 1110, 1115, 1300, or French 1116, 1117, or Spanish 1266, and Austrian 872), or by natural law... for to validate a contract a voluntary intention as to the substance suffices, although it is involuntary as to the accidents; unless... the contracting party expressly consents under the condition, if such a circumstance is present, because then the quality passes into the substance. But doctors commonly teach that such a contract can always be invalidated by the deceived person, by reason of the injury and defect of consent, and that the deceiver is bound to damages arising from the deception." And although the error was invincible, nevertheless someone can still invalidate the contract in conscience and not fulfill it, if the matter is of great moment, to which he is deservedly not considered to have wished to consent, at least altogether absolutely.

L. 714, 715; l. 6. n. 835; C. A. 874; C. I. 1108, 1115; C. B. 123, 853; C. H. 1270, 1101, 1102, 1107, 1726. - But "if fraud is employed by some third party, without any fault of the other contracting party, the contract is certainly valid; but some with Lessius, Sanchez, Bonacina wish it still to be rescindable; others say that it cannot be rescinded, but that an action is given to the deceived person against the deceiver for obtaining reparation of damages." Gur. 777; C. A. 875; C. B. 123. Error or fraud concerning the motive cause of the contract invalidates the contract, for then consent is lacking concerning the very substance of the contract. C. I. 1109; C. H. 1266.

Hence "it is not surprising if a fiction of poverty impedes the transfer of ownership, since the motive for giving alms to this poor person is his poverty, which that man wickedly and deceitfully feigns in order to extort alms." Lugo, Resp. Mor. d. 17. n. 1. But restitution in that case can probably be made either to the owner himself, or to other poor persons from the presumed will of the owner. L. 622. Error or fraud concerning the merely impulsive cause of the contract, for example if you lavish alms on a poor man because you consider him very upright, though he is less upright, does not invalidate the contract, since consent in the substance of the thing is not lacking; nevertheless someone can in conscience rescind the contract if the matter is of great moment, to which he is deservedly not considered to have wished to consent, at least altogether absolutely, as was said about a quality giving cause to the contract.

And this has place especially in gratuitous contracts, which require a full voluntary act and spontaneity. L. 737; C. I. 1109, 1110; C. H. 1266. Error or fraud concerning the person of the contract, speaking per se, does not invalidate the contract in onerous contracts; for the person is altogether extrinsic and indifferent in such contracts. Except, however, marriage, in which the contracting person is at the same time the object of the contract itself.

But it invalidates the contract in gratuitous contracts, speaking per se; for in these, on the contrary, the person of the donee is customarily specially intended by the donor. It is said speaking per se, for the circumstances of the matter must be considered, from which the will of the contracting party may be better known. C. I. 1110; C. G. 1110; C. H. 1266; C. A. 873. Lessius 1. 2. c. 17. D. 5; Rogron and Gousset in a. 1110; Molina tr. 2. d. 352. nn. 7, 8. From C. He., title on Dispositions mortis causa, art. 462, dispositions made under the influence of error, bad fraud, violence, threats are null. Nevertheless they become valid if the disposer has not revoked them within a year from the moment at which he knew the error or fraud, or at which the effects of violence and threats ceased.

Does grave fear invalidate a contract, or at least render it rescindable? - R. Negatively, if there is question of fear from within, or from a necessary or natural cause; or of fear indeed from without, but justly induced. The reason is that fear does not simply take away voluntariness, unless it is so grave that it disturbs reason. Nor indeed does such fear inflict any injury on the contracting party.

If there is question of grave fear from without, and unjustly induced, and not for extorting consent, it is disputed, but a distinction seems to have to be made. "For if it was induced by the other contracting party... the contract is voidable, because he who unjustly induces fear is bound to remove all disadvantages which arise from the injury, among which is the obligation arising from such a contract. Thus more probably Lugo.

But if fear is induced by an irrelevant third party, and the contract is used as a means for declining the imminent evil, then an onerous contract holds irrevocably... for neither of the contracting parties inflicted injury; but the third party inflicting fear cannot take away the obligation by consenting to rescission of the contract, because the contract was not made with him; although he is bound to induce rescission, so that he may avert injury from the innocent person, if this one wishes... And who would say that a contract can be rescinded if, from fear of your enemy plotting against you, you bought a sword to defend yourself?... Lugo excepts 1. the contract of marriage, which he thinks to be invalid if entered upon from such fear. He excepts 2. probably with Palau, gratuitous contracts, because thus better provision is made for the innocent person, and the other cannot complain, because he is deprived only of gain, remaining in the state in which he was before; and just as he would not wish to be obligated in such a state, so neither ought he wish to oblige the other." Reuter 127. S. Th. Quodl. 5. a. 17. Cf. V. 2. n. 1022. If there is question of grave fear from without, unjustly induced for extorting consent by someone other than the fellow contracting party, it is again disputed. The first probable opinion teaches that the contract "cannot be rescinded by natural law, because since neither party has inflicted injury, there is no reason from the nature of the thing why it could be rescinded at the will of one rather than preserved at the will of the other." Reuter 126. C. A. 875 favors this opinion. The second probable opinion holds the opposite, "because by reason of the injury, even if inflicted by a third party, the thing remains obligated to the prior owner, and consequently passes to anyone with that burden; but it is not fitting that someone through another's injury should lose every right in his own thing. Billuart, etc." Gur. 782.

Both Roman Law, Reuter l. c., and Italian Law 1111, French Law 1111, and Spanish Law 1268 are consonant with this latter opinion. Cod. Lusit. 666: the contract is null. If fear from without is unjustly induced for extorting consent by the other of the contracting parties, whether the contract thus entered upon is invalid by the fact itself is disputed. There is a threefold probable opinion. The first affirms. The reason is that if a contract of this kind were naturally valid, justice would arise from injustice, since from a contract extorted by injury there would arise an obligation, which is an act of justice. The second holds that gratuitous contracts are invalid, but not onerous ones. The reason is that for gratuitous contracts, unlike other contracts, an altogether free will is required; for it is a beneficence. But the third, more probable and very common opinion teaches that such a contract is indeed rescindable, but not invalid, neither by natural nor by positive law. Not by natural law, because fear does not simply take away voluntariness. Not by positive law, whether Roman, by which judges are commanded to rescind such contracts, therefore per se the law has them as valid; or French, as is openly had in art. 1117; or Italian 1111, 1113; or Spanish 1267, 1268; or Austrian 870, 874, 875; or German 123; L. 715, 716. - Cod. Lusit. 666: the contract is null.

Note: From Canon Law, contracts elicited from grave fear are invalid where there is question: 1. of marriage, and probably also of betrothals; 2. of handing over things of the Church and of renunciation of a benefice; 3. of religious profession, and of any other vows whatsoever; 4. of election of a Prelate; 5. of absolution from censures, and probably also of ecclesiastical jurisdiction. L. 715, 716.

You will resolve: "If, after someone has been caught in theft or homicide, you threaten that you will denounce him to the judge unless he gives or promises you a certain gift, the promise holds, nor are you bound to return what was received... This is true even if you did not have the intention of denouncing him, but only of frightening him; because you would at least yield your right of doing this, which is estimable by price... For he gave it so that you would resign your right of accusing; this you truly do, even if you had not intended to accuse." Reuter 120. And St. Alphonsus 894 says this more probably.

Whether a contract entered upon from slight fear is rescindable at the discretion of the one who suffered the fear? - "The first opinion affirms in the internal forum; for in the external forum an action is not given. The reason is that any fear whatsoever inflicts injury, from which the one inducing it ought not to receive advantage... Thus probably Lessius, etc. Yet they rightly except marriage according to our opinion, l. 6. n. 1056, and religious profession. Whether also a vow, see de Voto, 197. But the second opinion, which seems more probable to me, which Pont., Tamb., Viva, etc., hold, says that a contract entered upon from slight fear can be rescinded neither in the external nor in the internal forum. The reason is that he is not presumed to have consented from fear, but truly spontaneously, who knew it to be slight and, when he could easily have done so, did not reject it. Nevertheless the Salmanticenses judge that betrothals are altogether to be excepted, which, even when contracted through slight fear, can be rescinded by sentence of a judge, from the greatest liberty which betrothals require." L. 718. Gury-Ballerini 780 likewise judges that gratuitous contracts are to be excepted. C. I. 1114; C. G. 1112, 1114; C. H. 1267 favor this opinion.

Note: What has been said about grave and slight fear, understand also about reverential fear, insofar as this is grave or slight. L. 717; C. I. 1114; C. G. 1114; C. H. 1267.

Whether, if there has intervened grave unjust fear giving cause to the contract, and the thing has come to a third possessor in good faith, the one who suffered the fear can revoke the thing from him, and whether he is bound to restore? - Laymann denies it. But the Salmanticenses, Lugo, etc., more commonly and rightly affirm it; because the thing always passes with its own defect, even if the fear was not induced by that third party. "In this action it is not asked whether he who is sued, or another, caused the fear; for it suffices to say this: that fear was brought to bear." L. 14. § 3. Quod metus causa gestum erit. L. 719.

Note: Restitution in full is given to those harmed, by civil law, unless, namely, someone has approved the matter as duly and rightly done. C. I. 1309; C. G. 1311, 1338. It is given only in the cases expressed in law, C. G. 1118, even if there is question of minors, C. I. 1308; C. G. 1313, that is, in divisions, sales, and exchanges from C. I. 1038, 1529, 1554; in divisions and sales, but not in exchanges, from C. G. 887, 1674, 1706; in all contracts except aleatory contracts and compromises from C. A. 934, 1060, 1268, 1386; only in contracts celebrated by tutors or by representatives of absentees from C. H. 1291, 1293. Restitution in full, that is, replacement into the former state, and therefore each one is restored in his prior right. Therefore the harmed person recovers his thing, and the one harming, if he acted in good faith, ought to lose nothing of his own.

It must be sought from the judge; it has place even if injury was absent; and from C. I. 1300, the action of nullity or rescission is prescribed by five years; from C. G. 1304, by ten years; from C. H. 1299, by four years. Prescription of this sort holds also in the forum of conscience, because restitution belongs only by civil law. Action; for the exception of nullity or rescission is perpetual in favor of him who is compelled to execute the contract. C. I. 1302.

This benefit likewise belongs to churches and pious places within four years, from C. 1, 2 de Restit. in integr. in the Sixth. But restitution in full which belongs by natural law to those harmed, from injury inflicted because of fraud or fear, does not need the office of a judge, and it is verified in all contracts, and is perpetual. L. 717; Gousset 739; S. Th. 2. 2. q. 89 ad 3. From C. B. 853, payment of a credit obtained by an illicit act can always be denied.

Who have, by natural law, capacity for contracting? - By natural law all and only those who have the free use of reason can validly contract. The reason is that all and only these can transfer ownership and undertake obligations. Hence infants, not yet having the use of reason, the insane, the furious, and the perfectly drunk cannot validly contract. They cannot contract, namely per se; for since they can have ownership of property, tutors and curators can contract for them. - Likewise by natural law, all and only those who have free administration of goods can contract firmly.

The reason is that, by the very fact that ownership or administration of goods depends on the ownership or jurisdiction of another, a contract has from the nature of the thing this implicit condition: unless the other, whose right it is to contradict, shall have contradicted. Hence, although religious licitly contract from the presumed will of the superior, nevertheless the contract is revocable by the superior. Although religious Prelates, or administrators of common goods constituted by them, can contract irrevocably in ordinary causes in which the Constitutions concede administration to them without the concurrence of others, nevertheless in those in which they depend on the consent of the Chapter, or Community, or their own Council, they cannot contract firmly and irrevocably without such consent. Struggl 12; Reuter 141. Cf. Instruction of the S. C. of Religious, 30 July 1909.

Who have, by positive law, capacity for contracting? By positive law, in order that someone validly, or at least firmly, contract, it is required that he not be declared by law incapable of making a contract. From Roman Law a wife cannot contract or dispose concerning her dowry and its fruits; nor concerning goods common to the family, when the husband reasonably contradicts. But she can dispose at will concerning paraphernal goods, even against the husband's will. L. 489. A son under paternal power who is below puberty, even if he contracts with the father's consent and concerning military goods, is not obligated. But, if he is of puberty, he is obligated, provided that there is no question of alienating immovables and precious movables.

But he can by no means dispose concerning profectitious and adventitious goods. - A person below puberty deprived of a father contracts validly by authority of a tutor, and a minor with the consent of a curator, unless there is question of immovables and precious movables. But a ward can oblige another for his own advantage, for example by accepting a donation, even without the authority of a tutor. Inst. § 9 Pupillus de Inutil. stipul. - Those civilly dead can neither receive nor donate goods in any way; and their goods pass to the heirs. Those civilly dead are those condemned to death, to perpetual galleys, to deportation.

From C. I. 324 ff., 1105, 1106; C. G. 489 ff., 1123, 1124; C. H. 200, 1263, 1264; C. A. 21, 865, there are some to whom almost all contracts are prohibited, and others to whom only certain contracts are prohibited, or in certain cases. - Almost all contracts are generally prohibited to wives, minors, and interdicted persons. Among interdicted persons are to be counted the incapacitated, the deaf-mute, and those blind from birth. Someone is interdicted because of infirmity of mind. C. I. 324; C. G. 489. - He is declared incapable who indeed is of his own mind, but senseless, or inept, or prodigal. C. I. 324, 339; C. G. 513; Cf. C. A. 21, 269. - The deaf and mute, in civil law, are equated as to contracts with those under incapacity.

Those blind from birth are equated as to contracts with the deaf and mute. C. I. 340; C. A. 275. - Interdicted persons are equated to minors; therefore they are under tutelage. C. I. 329; C. G. 509. - A curator of incapacity is customarily given; with him they do all things legitimately, without him only those things which pertain to administration of goods. C. I. 339; C. G. 513. - Cf. C. H. 32, 170, 200, 221-220. From C. B. 104, one incapable of contracting is he who has not yet attained the seventh year, who labors under a mental disease excluding liberty, who is interdicted because of mental disease. From the same Code 105, the declaration of will of one incapable is null.

What about the contracts of wives, minors, and interdicted persons in more recent law? - A wife generally cannot contract firmly without the special consent of the husband, or, in his absence, without the authority of the judge. C. I. 135, 136; C. G. 217, 219; C. H. 61, 62, 65. Nevertheless she can buy necessaries for the family. In C. H. 62, a wife can contract without the special consent of the man when she makes ordinary expenses of the family. Likewise in C. He. 163, the wife represents the conjugal union for occurring necessities of domestic economy, and obliges also the husband, unless her acts have been excessive. From C. I. Comm. 14 § 2, a wife engaged in commerce is permitted even the alienation of her own immovable goods (not dotal goods). From C. B. 1365-1371, 1395-1400, 1405-1407, a wife can freely dispose of goods reserved to herself; but as to goods subject to the husband's administration and usufruct, she needs the husband's approval. Cf. C. A. 1237 ff. - Non-emancipated minors cannot contract firmly without the assistance of a tutor. C. I. 277; C. G. 450; C. H. 262, 1263; C. A. 152; C. B. 106 ff. But emancipated minors are capable of making acts of administration and contracts determined by law. But for the rest the assistance of a curator is required. C. I. 317-319; C. G. 480, 484, 487; C. H. 317. But in a matter of greater moment, the tutor and curator depend on the authority of the family council. C. I. 277, 301, 314 ff.; C. G. 450, 468, 483; C. H. 269. From C. I. Comm. 9 ff., emancipated minors, whether males or females, legitimately exercising commerce, are considered majors and can alienate their own goods, even immovable goods. Interdicted persons, namely those who by sentence of a judge are declared incapable of exercising civil acts because of a state of weakness, or dementia, or fury, as also prodigals juridically declared, cannot contract firmly without the assistance of a tutor or curator, or of a juridically constituted counselor. C. I. 329, 335, 339, 340; C. G. 502, 509, 513; C. H. 200; C. B. 114 ff. If the prescriptions of law are not observed, the contracts of these, namely of wives, minors, and interdicted persons:

1. Are valid, unless they are invalidated by the sentence of a judge. C. I. 1300, 1899; C. G. 1304, 2012; C. H. 1302; C. B. 106-113. - 2. Are rescindable at their discretion, but by no means at the discretion of the fellow contracting party. C. I. 341, 1107, 1300; C. G. 1125, 1304; C. H. 1302; C. B. 108, 111, 135, 144; except interdicted persons by way of penalty, against whom incapacity can be opposed by anyone having an interest. C. I. 1107. But where there is question of wives, the husband or their heirs also can oppose the nullity of the contract. C. I. 137; C. G. 225; C. H. 65.

3. Minors can invoke rescission because they are minors from C. I. 1300, 1303; C. H. 1300; because they are harmed from C. G. 1305, 1306. But wives and interdicted persons can invoke rescission even if they were not harmed. C. G. 1305, Rogron in this article; with the case excepted, however, for a minor, if, exercising commerce or an art, he contracted for matters of commerce or art, C. G. 1308; but for a wife, when she is occupied with public and separate commerce, C. G. 220, Rogron in this article; C. I. 135; or buys those things which are necessary for the support of the family, C. H. 62.

4. But they could not invoke this rescission in conscience whenever they acted by fraud and deceived the fellow party, and when the obligation arose from delict or quasi-delict. For no one ought to receive advantage from fraud; nor does the legislator intend to favor fraud and delicts, but the weakness of these persons. C. I. 1305, 1306; C. G. 1307, 1310; C. A. 865, 866; C. B. 109, 828.

5. Once rescission of the contract has been made, they must restore what they received, if they received advantage from the contract. C. I. 1307; C. G. 1312; C. H. 1303, 1304. If no utility came to them, they can use in conscience the benefit of the law, so that they not pay what they received, since such a law is just on account of the common good, for defending persons of this kind against the frauds of the wicked. C. I. 1307; C. G. 1312; C. H. 1163, 1304; Gousset 744-749; L. 918. Cf. here 667, 678, 1085. L. ult. C. de Temp. in integr. restit. grants four years for seeking restitution in full; C. I. 1300, five years. Cf. here 950.

To whom are only certain contracts prohibited by more recent law? - Only certain contracts, or contracts only in certain cases, are prohibited: 1. To tutors, who are forbidden to contract with those administered by them. C. I. 300, 1457; C. G. 450, 472; C. H. 275. 2. To spouses among themselves, C. I. 1054, 1433; C. G. 1525, or with respect to others, C. I. 1405; C. G. 1554. Cf. C. I. 1405, 1407, 1433 ff. Cf. also C. H. 1458, 1541; C. L. 1564. - 3. To certain private and public persons having care and protection of another's goods, namely as to these goods. C. I. 1457, 1458; C. G. 1596, 1597; C. A. 879. - But although contracts of this kind are prohibited by civil law, nevertheless not all are declared invalid by the fact itself before the sentence of a judge. From Trent, sess. 25. C. 16 de Reg., no renunciation or obligation is valid if made before the two months nearest to Profession. - Concerning absentees, cf. C. I. 21 ff., 26 ff.; L. 723, 724.

What sort must the object of a contract be? The object of a contract must be:

1. Possible, both physically and morally, because no one can be obligated to the impossible. Morally possible; therefore if the matter is very difficult, bringing graver inconveniences, unless there is certainty about an explicit will of obliging oneself, this, speaking per se, cannot be presumed. C. H. 1272; C. A. 878, 882; C. B. 306.

2. Existing either in reality or in a certain hope, or likely to exist; otherwise no right could be had in it, as being estimable at no price. From C. I. 1118; C. G. 1130; C. H. 1271; C. L. 1556; C. A. 879, an inheritance succession not yet opened is regularly excepted. Regularly; for this exception does not hold if there is question of a donation because of marriage, or of a contract of marriage, namely so that future successions be included in or excluded from the conjugal community. C. G. 1082-1084, 1091-1093; Gousset in a. 1130; cf. C. H. 826. Or if there is question of division of a future inheritance. C. H. 1056, 1271; C. I. 1044, 1045; C. G. 1075, 1076. Cf. 1010, 1069, 1235. Nor does it hold, according to many from ancient law, if the disposition is made in favor of a religious Community; because the end of the law is only to impede the danger of death being inflicted on the possessor. But where there is question of a monastery there is no such danger. Gur. Cas. v. 2. nn. 111, 112. Cf. C. A. 944, 1177, 1178, 1180; C. G. 943, 947, 1837; C. B. 310, 312; L. 30 de Pactis C.; Monit. Eccl. v. 15. p. 37. In Canon Law, provision of a benefice not yet vacant is invalid. Third Lateran Council C. 8.

3. Honest and licit in itself, that is, prohibited by no law, because no obligation can be given to a dishonest and prohibited thing. S. Th. 2. 2. q. 110. a. 3 ad 5; C. H. 1271; C. A. 878; C. B. 134, 138, 309. "Public law cannot be changed by private pacts." L. 38 de Pactis ff. - But for the validity of the contract it is enough that the object be substantially honest, although some accidental circumstance is illicit.

4. Proper to the contracting party; for no one can transfer to another a right which he himself does not have.

5. Certain and determined as to species, although it be uncertain as to quantity, provided nevertheless that that quantity can be determined in some way. C. I. 1117; C. G. 1129; C. H. 1273. For there can be no obligation of a thing altogether uncertain and indeterminate.

6. That it be in commerce. C. I. 1116; C. G. 1128; C. H. 1271; C. A. 878, 880. - Inst. 1. 3. t. 19. §§ 1, 2, 3.

Can the object of an onerous contract be an action otherwise owed, and consequently can someone licitly receive a price for it? - R. Negatively, if it is owed from justice to the other contracting party. The reason is that otherwise you would sell another his own thing. Therefore neither a judge for issuing a just sentence, nor a robber in order not to kill you, etc., can receive a price either licitly or validly. R. Affirmatively, if it is owed from justice to a third person, with this person's right nevertheless uninjured. The reason is that you do not injure the right of the first, and you make a useful thing for the latter. Thus, for example, if someone hired you to go to a certain place for handling a business, you can also be hired by another to make that journey for another business, provided that the later mandate does not harm the prior. - "He who is not bound to something from justice, but from charity or another virtue, can well receive a price for it, since what he promises is estimable by price." L. 1. 4. n. 216; l. 3. n. 537, 713.

Hence you can indeed receive money so that you may keep the fast of the Church; but you are bound to restitution if you exact money for showing the way to a man passing by, which you can do immediately and without any labor of yours. For the price of a work is taken both from the labor and inconvenience necessary for it, and from the utility furnished to another from that work, according to common estimation, as well as from the obligation undertaken from justice of doing or not doing, and from the right which the other therefore acquires; but by no means from some singular necessity or utility of someone, which is only by accident.

Can a spiritual thing be the object of a contract, whether gratuitous or onerous? - R. Affirmatively, with all simony nevertheless excluded. The reason is that nothing disordered is present in such a contract, nor is it prohibited by positive law. Hence, whether from fidelity or from justice, you can promise Masses, etc.

What about the cause of a contract? - An extrinsic and impulsive cause of a contract is not necessary for the contract to hold. For neither is what proximately determines the contract. Thus the purchase of oxen holds, which I thought necessary for cultivating a field, falsely thinking that my own had perished. - But an intrinsic and motive cause of a contract is altogether necessary for the contract to hold. For this itself is what proximately determines to the contract. In onerous contracts this cause is the utility of the thing at least for one of the contracting parties; in gratuitous contracts, the will of benefiting some person. Utility of the thing, which consequently is almost convertible with the very object of the contract.

Will of benefiting, which is convertible with the very consent of the will. Utility of the thing, that is, the thing in itself which one party gives to the other, or is obligated to give, or the danger which he assumes upon himself. Utility of the thing, and therefore the will of acquiring that thing, or of freeing myself from some obligation. Hence the obligation which I undertook of paying you 1000 francs, as owed to you from the legacy of my father, which afterward I found out had been revoked by him, does not hold. C. I. 1101, 1119; C. G. 1105, 1106, 1131; C. H. 1274, 1276; C. A. 922 ff.; Gousset in a. 1110, 1131; Pothier, tr. delle Obbligazioni p. 1. c. 1. n. 42.

If a base thing has been furnished by another, is someone bound to furnish what he had promised? The first probable opinion denies. The reason is that what from the beginning is null cannot have value, even after the placing of the work on the other side. For when the work is fulfilled, that prior will has no force because of the law invalidating such a contract. For not only natural law itself, but also positive law, both canon and civil, C. I. 1119; C. G. 1131; C. H. 1275; C. L. 669, 671; C. B. 138, invalidates such a contract from the beginning. Since therefore that will has no moral value at the beginning of the contract, it persists as such even after the placing of the work. But just as sin is not estimable by price, so also the labor or inconvenience intrinsic to that sin is not estimable by price.

The second probable opinion affirms. For there are two contracts. The first is the promise of a base thing to be furnished, which certainly is invalid. But the other is an unnamed contract. Now an unnamed contract, I give that you may give, etc., is perfected when delivery of the thing or furnishing of the work is made; and then, as is clear, the reason and force of the laws which invalidate base pacts cease; for the obligation which is then placed on the other side is not base, nor does it oblige to a base thing. But the inconvenience and danger which the other party underwent is truly estimable by price, although the sin itself cannot be estimated by price. S. Th. 2. 2. q. 32. a. 7; q. 62. a. 5 ad 2; 4. D. 15. q. 2. a. 4. q. 2, 3; D. 33. q. 1. a. 3. q. 2 ad 1; Lugo d. 18. n. 45 ff.; L. 642, 712; Struggl art. 6. VI; Reuter 109, 339; Tambur., Explicat. decal. 1. 7. c. 5. nn. 19, 21; Ithur. Cas. 5; Gousset 753.

You will resolve: "When someone gives to a prostitute because of fornication, the woman can retain for herself what was given to her. But if she had extorted something excessive by fraud or deceit, she would be bound to restore it to the same man." S. Th. 2. 2. q. 62. a. 5 ad 2; q. 87. a. 2 ad 2; S. Poenit. 22 Apr. 1822; L. 4 de Condict. ob turp. caus. ff. If, on the contrary, a judge, from a contract, were to issue an unjust sentence for Peter, so that Peter would kill that judge's enemy, Peter after the unjust sentence has been pronounced would not be bound and could not kill the judge's enemy. From C. B. 817, he who has received a prestation contrary to law or good morals is bound to restore it. Restitution does not have place if the author of the prestation is guilty of the same illicit matter, unless the prestation consisted in contracting an obligation. What has been furnished for fulfilling an obligation of this sort cannot be sought back. From C. A. 1174, what was given for the execution of an illicit thing cannot be sought back. But what was given to impede an illicit deed can be sought back. From C. H. 1275 also and C. I. 692, the price knowingly paid for a base thing cannot be sought back.

Is one promising something prodigally to a woman for intercourse bound after the intercourse to give it? "Lugo, Filiucius, Sanchez affirm, because, once the promise has been placed, the giving is then owed, not prodigal. But Soto, Bannez, Trullench, etc., more probably deny, even if there has been an oath, because the promise does not take away that the prodigal giving is illicit; therefore the illicit matter must be reduced to equality according to common estimation." L. 735.

"If a man gives to a woman to extort intercourse, can she retain it when intercourse has not been granted? - If there was a pact concerning intercourse, explicit or implicit, then certainly she is bound to restore; but otherwise, if the gift was given to entice the mind, because that giving was altogether liberal... Yet the Salmanticenses rightly note that a woman receiving such a gift is with difficulty excused from the sin of scandal, because once the gift is accepted the man is rendered more ardent and more audacious for lusting after her." L. 712, 734, 736.

What is the force of obligation in contracts? Each person is presumed to enter into a contract for himself and his own, unless the contrary is established by the contracting party himself, or from the nature of the thing. Any contract duly entered upon gives birth to an obligation in the forum of conscience, at least on the part of one of the contracting parties, because in a contract some right is given to one or to both parties; but to every right there corresponds its own obligation. - An obligation of this kind regards the contracting parties themselves, not third parties, to whom per se they neither benefit nor harm, as a thing done among others, except in cases determined by law. But it extends itself not only to that which is expressed in the pact, but to all consequences which equity, law, and custom demand according to the nature of the agreement. The reason is that all these things are implicitly understood in any agreement, unless one of these has explicitly been derogated from by special pact. And these are customarily called the naturalia of a contract, so that they may be distinguished from the essentialia, cf. 938, and the accidentalia, cf. 936, 943. C. I. 1123, 1124, 1127, 1130, 1131 ff.; C. G. 1119, 1123, 1134, 1135, 1165, 1156 ff.; C. H. 1097, 1255-1258, 1278, 1281 ff.; C. A. 904 ff., 914 ff., 1017, 1019; C. B. 314 ff., 328 ff.; L. 734. If the obligation is in not doing, C. B. 241, and someone has done it, he must repair the damage and is compelled to remove the work at his own expenses. C. I. 1222; C. G. 1143. - But if the obligation is in doing, it is in the creditor's power to do it at the expense of the debtor, C. I. 1220, or certainly the debtor is bound to pay as much as it interests the creditor, if he does not wish to do it. C. G. 1142. Nor indeed can that which is owed be furnished through another, if it matters to the creditor that it be done by the debtor himself. C. I. 1239; C. G. 1237. But it suffices to do it with moderate or common skill; but if he has done it unskillfully, he will be bound also in the forum of conscience. - If the obligation is in giving, what is owed must be given, not another thing. C. I. 1245; C. G. 1243. If the quality of the thing to be given has not been determined, neither the worst nor the best is to be given. C. I. 870, 1248; C. G. 1022, 1046; C. B. 243. If the very thing to be given cannot be given, its valuation is given, according to the value of the time at which it ought to have been given. C. I. 1223. But if money is to be given, it is estimated from its present value. C. I. 1821; C. G. 1895; C. B. 244. The thing is to be given in the place concerning which agreement was made; otherwise in the place in which the thing existed at the time of the contract; outside these cases, in the place in which the debtor now dwells. C. I. 1249; C. G. 1247; cf. C. B. 269, 270. - It is likewise to be given in one payment, although the thing is divisible. C. I. 1204, 1246; C. G. 1220, 1244; C. A. 1415; C. B. 266. - The obligation of giving a thing imports the obligation of preserving it, with the diligence of a good father of a family applied to his own things. C. I. 1219, 1224, 1817; C. G. 1136, 1890.

The contracted obligation is to be furnished in its own time. If no time has been established, it is to be furnished immediately, unless the thing itself induces delay. C. I. 1173; C. G. 1146. Cf. C. A. 1417; C. B. 250, 271. He who in his own time does not furnish the thing owed, or does not receive it, is said to make delay; and each one's own delay harms him, namely if it was not without civil fault in the external forum, or theological fault in the forum of conscience. Hence he who is in delay furnishes the damage which arises from it; but if grave damage is absent, in this a moderate delay which does not exceed the twentieth day excuses in the forum of conscience. C. I. 1219, 1223, 1225; C. G. 1139, 1146, 1147; C. A. 904, 1334; L. 680.

You will resolve: Contracts cannot be revoked except by mutual consent, or by causes approved by natural equity, law, or custom. C. I. 1123; C. G. 1134, 1135; C. H. 1300. - The intention of the contracting parties is to be carefully investigated, if it can be clearly and expressly established. But if it remains obscure and ambiguous, it is to be interpreted in good faith, both from the matter of the agreement, and from the various clauses of the agreement, and from the usage of places, and from the character of the persons, etc. L. 219 de Verbor. signif.; C. I. 1131-1139; C. G. 1156-1164; C. H. 1281-1289; C. A. 914-916; C. B. 133-157, 242, 315 ff.

Note: In all contracts obligatory back and forth, the condition is tacitly present that, if one of the contracting parties has not fulfilled his obligation, it is lawful for the other to withdraw from the contract. But this tacit condition does not dissolve the contract except by the office of a judge, according to more recent laws; but if expressly added, it dissolves the contract by the law itself. C. I. 1123, 1165; C. G. 1134, 1184; C. B. 320 ff., 346 ff.

How does the obligation of contracts cease? - The obligation of contracts ceases:

1. Through payment, or through the furnishing of any thing owed, or also through the execution of the object promised or otherwise owed. C. I. 1236 ff.; C. G. 1134 ff.; C. H. 1157 ff.; C. B. 362 ff., 372 ff. Payment is to be made by him who can alienate. C. I. 1240; C. G. 1238; and from C. A. 1421, although he is incapable of administering his own things. If there are several debts, the debtor can impute the payment to whichever he wishes. C. I. 1255 ff.; C. G. 1253 ff.; C. A. 1415 ff. - Cf. Vinnius on Inst. 1. 3. t. 30. nn. 1, 4. - But payment does not hold if the creditor is incapable of receiving, unless it is proved that the payment made yielded to his utility. C. I. 1143; C. H. 1163; C. G. 1241; C. A. 2414. But if the creditor unjustly refuses to receive payment, the debtor is freed by making a deposit of the thing owed in the modes prescribed by law. C. I. 1259 ff. "Nor does it matter who pays, whether he himself who owes, or another for him; for he is freed even when another pays, whether the payment is made with the debtor knowing, or ignorant, or unwilling." Inst. 1. 3. t. 30; C. I. 1238; C. G. 1236.

C. B. 244, 267, 268; C. A. 1423.

2. Through novation, or a new obligation, which is not presumed, but must be expressly established. It has place in three ways: 1. Through substitution of a new debt for an old debt, which is thus extinguished; for example, I promised to give you ten casks of wine each year; now I agree with you that I am no longer bound to give wine, but a thousand francs: the obligation of giving wine is then extinguished. Likewise, money is owed from purchase; it is agreed that it be retained as though from a loan for consumption. The effect of novation of this kind is that, once the prior obligation has been removed, its inconveniences also are taken away, and the advantages of the later obligation are received. 2. When a new debtor is substituted for the old, who is therefore freed by the creditor; namely if the debtor substitutes another debtor for himself, whom his creditor accepts, or if another freely promises that he will pay in place of the debtor. 3. When a new creditor is substituted for the old, toward whom the debtor no longer has any obligation. C. I. 1267 ff.; C. G. 1271 ff.; C. H. 1203 ff.; C. B. 364, 398 ff.; C. A. 1345, 1375 ff.; L. 1 Dig. de Novationibus; Inst. 1. 3. t. 30. § 3; Vinn. in this place.

3. Through condonation, or an act by which a creditor from full liberty remits a debt to his debtor. For each one can yield his own right in all those things which do not regard the public good, provided he was not incapable of contracting. It is had by presumption of law if the creditor has returned the security to his debtor, or ordered it to be returned; but by no means if the creditor has returned the pledge, or freed the surety. An acceptilation is called a condonation of this sort, because through it the creditor has as though accepted that which is owed to him. Hence it is said in Law that acceptilation is an imaginary payment. "But just as what is owed is rightly paid in part, so acceptilation can be made in part of the debt." Inst. 1. 3. t. 30. § 1. - C. I. 1279 ff.; C. G. 1282 ff.; C. H. 1187 ff.; C. B. 397.

4. Through compensation, or fictive and reciprocal payment, which has place by the law itself when persons are mutually debtors toward one another. C. I. 1285 ff.; C. G. 1289 ff.; C. H. 1195 ff.; C. A. 1433 ff. - From C. B. 388, a declaration of one party to the other party is needed. - This legal compensation is not had between that which is owed only naturally and that which is also owed civilly; likewise this compensation is not had as to those things which are subject to rescission or restitution in full. Cf. 1471.

5. Through confusion, which has place when the obligation of the debtor and the right of the creditor are joined together in the same person; for example, if the creditor becomes the heir of his debtor, or the debtor of his creditor, or the same person becomes heir of the creditor and debtor at the same time. C. I. 1296 ff.; C. G. 1300 ff.; C. H. 1192 ff.; C. A. 1445; L. Sicut acceptatio Dig. de Solutionibus etc. Cf. C. B. 889.

6. Through destruction or loss of the certain and determined thing owed, which at times frees the debtor from obligation, as in merely gratuitous contracts, and also in others where the fault of the debtor does not enter. But at times it does not free him, for example if it happened by fraud of the debtor, or he was in culpable delay, or he took the case upon himself. Certain and determined, for example such a horse; but something else must be said if the thing was uncertain and indeterminate; for genus and species do not perish. Therefore, if you promised a horse in general, not such a horse, not one of your horses, the obligation remains, even if all your horses perish; hence you must buy and hand over another. C. I. 1298 ff.; C. G. 1302 ff.; C. H. 1182 ff.; C. B. 275, 280; L. Si ex legati Dig. de Verbor. obligat.

7. Through rescission, or rescindability, which has place when a contract, consisting of essential conditions, is dissoluble because of some defects. That contract holds until it is rescinded. C. I. 1300 ff.; C. G. 1304 ff.; C. H. 1290 ff.; C. B. 346 ff.

8. Through prescription, concerning which it has been spoken above. C. I. 1236; C. G. 1234; C. H. 1930.

9. Through contrary will. For "those obligations which are contracted by consent are dissolved by contrary will. For, if Titius and Seius have agreed between themselves that Seius would have the Tusculan estate bought for one hundred gold pieces; then, the matter not yet having followed, that is, neither the price having been paid nor the estate having been handed over, it has pleased them that they withdraw from that purchase and sale, they are mutually freed." Inst. 1. 3. t. 30. § 4. Cf. n. 964.

What is understood by accidental modifications of contracts? - Accidental modifications of contracts are certain extrinsic or intrinsic qualities of contracts which strengthen or weaken their obligation; increase or diminish it; determine, suspend, or destroy it. Now the principal modifications of contracts of this sort, which pertain to the practice of the confessor, are: an oath which extrinsically confirms the contract, and the various modes of contracts by which the obligations of contracts are intrinsically constituted in various ways.

What is the force of an oath added to a contract? A promissory oath is added to contracts in order to confirm them because of reverence for the divine Name. Hence besides the obligation from justice by force of the contract, there is also an obligation from religion by force of the oath. The obligation of an oath affects only the person swearing. For by it we are obligated to God to do what we promised. Therefore, although the obligation of a contract passes to the heirs, as one which affects the goods of the contracting party himself, nevertheless the obligation of the oath does not pass to them. As to the obligation of an oath, the general rule is: An oath follows the nature of the act. For the accessory follows the principal. L. 1. 6. nn. 870, 873.

In Roman Law several contracts, otherwise invalid, became valid and firm by oath. This could well be done by force of the law itself, restoring the natural obligation taken away, or removing the action introduced for seeking restitution in full, because of reverence for the oath added to the contract. By more recent law, contracts otherwise invalid or rescindable become neither valid nor firm. C. H. 1260: an oath is not admitted in contracts, and if it is made it is held as not added. This nevertheless does not prevent someone in conscience from having to stand by the promise and oath by which he freely renounced a favor conceded through the laws, if this renunciation is not illicit and prohibited, and there is question of a favor of a merely private person; for example if someone confirms by oath some simple promise, to which civil law neither assists with an action conceded in the external forum, nor resists, by taking away its natural validity.

You will resolve: An oath is invalid if the act itself is invalid by the fact itself, whether by natural law or by positive law. Trent, sess. 25. C. 16 de R. R.

When the obligation of the act has been removed, the obligation of the oath is also taken away. Those things which are tacitly present in the act, namely if I am able, if the matter is not notably changed, if the other keeps faith, etc., are also present in the oath. Hence, if you swear that you will observe the statutes of some community, if these are no longer observed by the greater part of the community, neither are you bound to observe them. L. 1. 3. n. 181.

Does an oath added concerning not rescinding a contract altogether firm a contract which is rescindable by positive law? It is disputed.

Some say that it is firmed both from religion and from justice; and therefore that it gives a right of justice to the promisee. For the validity or firmness of the act, removed by law, is restored through the oath. But an oath by its own nature does not furnish this, since through it we are obligated not to man, but to God alone. Nor does an oath make a new obligation from justice, but confirms one made from religion. But others say that it is firmed only from religion. Firmed from religion; that is, the promisee stipulates for himself a new security and a certain quasi-pledge, with an oath interposed, which consequently it is not lawful to extort from him, when he is reasonably unwilling, as from an unwilling creditor, by dispensation of the oath. And indeed, because of reverence toward God, an oath is to be kept whenever it can licitly be kept. Therefore it must be denied when rescindability is introduced immediately and directly on account of the common good. For then it would be harmful to the common good, and therefore illicit and invalid. The same must be said if renunciation of right is prohibited. For then it is illicit. Trent, sess. 25. C. 16 de R. R. But it must be affirmed if rescindability has been introduced immediately and directly on account of the private utility of the contracting parties, and renunciation is not prohibited. For then each one can renounce a benefit established in his favor. Hence the oath does not seem to stand by which someone freely promises another that he will not revoke a testament or legacy made in his favor, since that renunciation is prohibited under whatever form. C. I. 916. Cf. 1034. But do the oaths of minors, wives, and similar persons hold for firming contracts? Gury 792 denies it, "even if the law has been established for their utility, since wicked men would always exact an oath from them, which would yield to the detriment of society." But Struggl, tr. 5. q. 3. n. 27, affirms it. Secondly, on account of the general reason that that law was enacted immediately and directly on account of the good of private persons. Cf. 223 and C. Cum contingat 28 de Iurei. It will perhaps be better to distinguish. For if the contract regards a thing good and useful in itself, then the aforesaid persons seem to be bound to fulfill it, with the benefit of the law neglected. But if the contract regards obtaining helps by which they may indulge their desires and dissipate the family estate, the oath is contrary to good morals, and they can well use the benefit of the law. That is, the common good demands this protection of age and sex through rescindability. But to use it or not use it depends on the discretion of each one, and he certainly can reasonably renounce it. Besides, because an oath is accessory, and does not change the nature of the act, if the act is by its own nature revocable, as a testament; or revocable by positive law, as a donation when children have been received; or subject to rescission, as contracts of minors and wives, it is validly revoked and validly rescinded. - Lugo d. 22. nn. 200-202, Resp. Mor. 1. 6. d. 24; Lessius 1. 2. c. 17. d. 7; L. 177, 727, 739, 757, 891, 892; C. A. 937; Gousset in a. 1304; E. M.

What are the various modes of contracts? - The various modes of contracts, by which the obligation of a contract is variously modified, are: contracts of obligation under a condition, with a mode, to a term, alternatively, solidarily, divisibly or indivisibly, with a penal clause, under a cause, under a demonstration. A mode is to be observed from justice, unless it is repugnant to the substance of the contract. Violation of it often does not invalidate the contract, because, namely, it is something merely accidental. If the mode is base or impossible, it is held as not added, nor is the contract invalid, unless the mode is repugnant to the nature of it, or unless the will of the contracting party was altogether restricted to it.

When is a conditional contract had? - What if the condition is impossible or base or potestative? In what way is the condition to be fulfilled? - A conditional contract is when it depends on a future and uncertain event. C. I. 1557; C. G. 1168; C. A. 696. A condition is expressed by the words if, provided, provided that, or even by an ablative absolute, which nevertheless is not always constant.

On an event; for those things which are tacitly present, whether from the nature of the thing or from positive law, do not make the act conditional, although they may have been expressed. Future and uncertain; for if it depends on a past or present event, or on a future but certain event, for example if the sun rises the next day, the contract is immediately valid or null, although it is still uncertain to us.

Therefore a condition concerning the future suspends the contract and its obligation until it is verified; but a condition concerning the present or past suspends only the execution of the contract. C. I. 1161; C. G. 1181; C. H. 1114; Inst. 1. 3. t. 16. §§ 4, 6. Cf. Lugo, Resp. Mor. 1. 4. d. 3. n. 9. - Once the condition has been fulfilled, even if this is hidden, the contract is perfected by the law itself, and has retroactive effect, without need of new consent, just as if it had been contracted absolutely from the beginning. C. I. 1163, 1170; C. G. 1179; cf. ib. 1182. For this reason, if meanwhile the things have become better or worse, the advantage and disadvantage belong to the acquirer. C. I. 1163.

Cf. C. G. 1182. A condition concerning a base or impossible thing renders the contract null both by natural and civil law. C. I. 1160; C. G. 1172; C. H. 1116; C. L. 683; Inst. 1. 3. t. 20. §§ 11, 24. Nevertheless, from the same C. G. 900, donations among the living and by testaments are excepted, in which impossible or base conditions are held as not added. For it is presumed that they were not seriously added with the intention of suspending the contract. From C. I. 1065, a donation under an impossible or base condition is null. And from the same C. I. 849; C. H. 792; C. L. 1743, impossible or base conditions in testaments are considered as not placed. Thus also it is had in Inst. 1. 2. t. 14. § 10. Likewise marriage is excepted in Canon Law, in which impossible or base conditions are held as not added, C. 6 de Condit. appos., provided that the base or impossible condition is not contrary to the substance of the contract.

A contract is null when the condition is potestative, namely one which depends solely on the will of him obliging himself, for example: I will give you 1000 lire, if it shall please me. For a contract of this kind, as is clear, can produce no obligation. C. I. 1162; C. G. 1174. But the contract will be valid if the potestative condition is not the will itself of the debtor, but the will of the other party, or of a third person, or some fact to be fulfilled by one of the two contracting parties. Gousset in the cited article; Troplong, della Vendita c. 1. n. 132 ff.; C. H. 1115, 1256, 1449. A condition is to be fulfilled in that sense in which the contracting parties are prudently considered to have wished to oblige themselves. C. I. 1166; C. G. 1175.

Therefore 1. the will rather than the words is to be looked at. 2. Generally speaking, the condition must be fulfilled in its own form; nevertheless, sometimes it suffices that it be fulfilled equivalently, namely when such is prudently considered to have been the will of the contracting party. Gousset in the cited article; L. 734. A condition is considered fulfilled whenever it stood through him who obligated himself under it that it not be fulfilled. C. I. 1169; C. G. 1178; C. H. 1119, 1122; C. L. 679, 1744; C. B. 162. Before the condition is fulfilled, the creditor can exercise all acts conservative of his right. C. I. 1171; C. G. 1180; C. H. 1121; C. A. 897 ff.; E. M.

When is a resolutory condition of a contract had? - Besides the condition about which we have spoken, which, because it suspends the contract, is called suspensive, there is another condition, which is called resolutory, because, once verified, it resolves a valid contract and restores the parties into the same state in which they were before the contract. C. I. 1158, 1164, 1168, 1183; C. G. 1183; C. H. 1123; C. A. 696; C. B. 158. - When the condition occurs, the contract ceases by the law itself, and has retroactive effect, just as if nothing had been done from the beginning. C. I. 1170; C. G. 1179. - Therefore if the thing meanwhile has been made better or worse, the advantage or disadvantage belongs to the alienator. - Once the contract has been resolved, prejudice is not done to third parties as to rights over immovables previously acquired. C. I. 1511, 1787. - A condition of this kind is understood in every synallagmatic contract, if the other party does not fulfill his obligation. Cf. n. 965. C. I. 1165; C. G. 1184; C. H. 1124; C. B. 159, 160, 161, 346 ff.

When is a contract under a mode had? - A mode must be distinguished from a condition, that is, a merely superadded burden, for example: I give you this estate with the obligation of celebrating so many Masses annually. Now this contract holds immediately, with the burden of fulfilling the obligation remaining on the other party; if the other party does not fulfill it, he sins against justice, but the contract does not therefore fall. C. 4 de Cond. appos. A contract of this kind is said to be with a mode. A mode added for the advantage of the one receiving, for example, I leave a thousand lire to Caius, so that he may buy himself a little field, is regularly as not written, and does not induce restitution. A mode added for the utility of others induces an obligation from justice. L. 734. An accidental or accessory base mode is to be held as not added; a principal or substantial base mode invalidates the act; for example, Titius the sectarian left you an immense sum of money, at the same time willing that you write his eulogy after death in a public newspaper, in praise of the sectarians; Caius left you a sum of money, so that you take care of the cremation of his body and retain the rest for yourself.

When is a contract to a term had? A contract of obligation to a term, or to a determined day, is when, although its obligation immediately arises, nevertheless execution is suspended to a determined day. C. I. 1172; C. G. 1185; C. H. 1125; Inst. 1. 3. t. 16. §§ 2, 3. A term is always presumed to have been established in favor of the debtor, unless otherwise has been agreed. C. I. 1175; C. G. 1187; in favor of the creditor and debtor, unless the thing and its circumstances demand otherwise, C. H. 1127. What is owed to a term cannot be exacted before the established day. If nevertheless it was paid before that day, it cannot be sought back. C. I. 1174; C. G. 1186. Nevertheless it is rightly sought before the day if the debtor has begun not to be solvent. C. I. 1176; C. G. 1188; C. B. 163, 186 ff.

When is a contract of alternative obligation had? A contract of alternative obligation is when two things are obligated disjunctively, so that the debtor is freed by paying one or the other. C. I. 1177; C. G. 1189; C. H. 1131. The choice belongs to the debtor, unless otherwise has been agreed. C. I. 1178; C. G. 1190; C. H. 1132; C. B. 262; C. A. 906. But if one thing perishes, he is bound to give the other; or its price, if this one also perishes later, namely if by his fault; otherwise he is freed from every obligation. C. I. 1180; C. G. 1192, 1193; C. H. 1134-1136; C. B. 265.

Note: A facultative obligation is not to be confused with an alternative obligation. In it only one thing is obligated; but the faculty is given of substituting another thing for it. Paul left his house to Peter, unless his heir preferred to pay the sum of 10000 lire. Peter cannot exact anything except the house, although the heir can pay him 10000 lire for the house. Hence, if the house perishes by chance, the heir will be bound to nothing; and in this properly lies the difference of one obligation from the other. Gousset 765.

When is a contract of obligation in solidum had? A contract of solidary obligation is either on the part of creditors, namely when the whole credit can be exacted by each creditor, and therefore payment made to one creditor frees the debtor from the trouble of the other creditors, C. I. 1184; C. G. 1197; C. A. 892; or on the part of debtors, namely when each debtor can be compelled to pay the whole debt, so that payment made by one debtor frees the rest as to the creditors themselves. C. I. 1186; C. G. 1200; C. A. 891. This solidary obligation of debtors is not presumed, but must be expressly stipulated. C. I. 1188; C. G. 1202; C. H. 1137. But if one received the whole, he communicates it with the rest; if one paid the whole, he seeks it back from the rest, his own part being deducted. C. I. 1198, 1199; C. G. 1213, 1214; C. A. 896; C. H. 1142, 1143, 1145. - If one of the creditors interrupts prescription, or exacts legal interest, this benefits all. C. I. 1192, 2130; C. G. 1199, 1207; C. A. 891 ff.; C. B. 421 ff. The solidary obligation or right of the testator is divided by the law itself among heirs; and therefore each owes or seeks for that portion by which he is heir; but all owe or seek the whole. C. I. 1203; C. G. 1219; C. A. 888.

When is a contract of divisible or indivisible obligation had? A contract of obligation is divisible or indivisible from a divisible or indivisible object; namely if it is composed of some thing which, when it is handed over, or of some deed which, when it is put into execution, can be divided, or not, whether from the nature of the thing, as a horse; or from law, as a mortgage; or from the acceptance of the contracting parties, as a pair of horses. C. I. 1202; C. G. 1217. If you have bought one hundred casks of wine and twenty perish, the purchase still holds if it was made divisibly. If you donate a horse, and then learn that the horse is not only yours, but yours and your brother's at the same time, the donation does not hold, since it was made indivisibly. From C. G. 1330, obligations are indivisible among the parties; they are applied divisibly only to their heirs. If a debtor dies, to whom there are several heirs, if he himself obligated only one to pay, the obligation is indivisible; otherwise the debt will be divisible.

Likewise, if a creditor dies, to whom there are several heirs, if he himself leaves the credit to only one, who can exact the whole credit, it will be indivisible; otherwise it will be divisible. C. I. 1204, 1205; C. G. 1220, 1221. Those who indivisibly owe something, each owe the whole but not wholly; and those who indivisibly are creditors of some thing or work, the whole is owed to each, but not wholly.

The whole, because the thing is indivisible. Not wholly, because the right or obligation of the whole is not in each one, but in all; and thus if two promised you one hundred gold pieces for buying an estate, both owe you one hundred; hence each is bound to the whole, but each one of them does not owe to give you one hundred, and therefore they are not bound wholly. For this reason he who pays or receives seeks back from the rest, or communicates with the rest, according to each one's part. C. I. 1206, 1207; C. G. 1222 ff. - C. H. 1149 ff.; C. A. 888 ff.; C. B. 356, 420.

If several are obligated divisibly to one, or one is obligated divisibly to several, for example if Titius, Sempronius, and Caius owe 90 lire to Aurelius, or Aurelius owes 90 lire to Titius, Sempronius, and Caius, and Titius, for example, is unable to pay his part of the debt, the other two are not therefore burdened; and if Titius condones to Aurelius his part of the credit, Aurelius is not therefore freed from paying his part to Caius and Sempronius.

Therefore generally if one of the creditors has remitted the debt, or the debt has been remitted to one of the debtors, the whole thing is owed to the remaining creditors, and the remaining debtors owe the whole thing, but with the price of that part repaid which belonged to him who remitted, or to whom it was remitted. If three persons divisibly sell an ox to someone, and by the fault of one after the sale and before delivery the ox perishes, the other two furnish nothing, and nevertheless exact the whole price, namely what is owed to themselves for a third part to each. Pothier, delle Obbligaz. n. 273. If several have divisibly promised one and the same individual thing to one person, for example to build a house, and they have not built it, each is liable for his part of the damage. C. I. 1216; C. G. 1232. Cf. Troplong, della Vendita cap. 4. a. 1647. n. 576 ff.

When is a contract with a penal clause had? - What is understood by earnest money? R. To the first: A contract with a penal clause is when someone, to firm an obligation, binds himself to something if he does not keep it. C. I. 1209; C. G. 1226; C. H. 1152; Inst. 1. 3. t. 16. § 7. Hence the debtor cannot exempt himself from the obligation by paying the penalty, unless this has been expressly established. C. H. 1153; C. A. 1336. If the principal obligation is invalid, the penalty is invalid, but not conversely. C. I. 1210; C. G. 1227; C. H. 1155. The penalty is owed from the time when he is placed in delay, and indeed from justice if it is sought, for at least culpable non-execution of the principal obligation; but by no means are both the penalty and the principal thing owed at the same time, unless it was established for simple delay. C. I. 1211-1213, 1229, 1230; C. G. 1228-1130; C. H. 1153; C. A. 909-911. Cf. C. B. 339 ff. A conventional penalty is owed before any sentence, since such a penalty involves a pact.

R. To the second: What is given in advance by the contracting parties holds the place of security for compensation of damages, if the agreement is not fulfilled, unless otherwise has been agreed, and is called earnest money, caparra. The party which is not at fault, if it does not wish to urge fulfillment of the agreement, can retain for itself the security accepted from the other; or exact double of that which it gave. C. I. 1217; C. A. 908-910. Cf. C. B. 336 ff.

When is a contract under a cause, or under a demonstration, had? When is a contract of this kind invalid because of error? R. To the first: An obligation under a cause or under a demonstration is when a cause is expressed, or the thing is designated; for example, I leave Titius one thousand lire because he undertook my patronage; I leave Titius one thousand lire which I received from Sempronius.

R. To the second: In a contract under a cause (because), or under a demonstration (I sell this, or so much), error does not invalidate unless it pertains to the essence of the thing. Hence, as to cause, if someone sells to another fields which each considers to be adjacent to fields which that other already possesses, but it happens that other fields are described in the instrument, the contract will be null; but otherwise if one or the other falsely thinks they are more fertile. - If someone contracts with a man as with a physician, who nevertheless falsely professes the knowledge of healing, he is not held by the contract; but otherwise if he summons a certain less skilled physician whom he thinks to be another of the same name, celebrated by reputation. As to the thing, if the error is in quantity, the whole thing is owed if the quantity was designated demonstratively (this); but if taxatively (only so much), the excess of quantity is not owed. Now a thing is considered designated demonstratively if the thing is expressed in the first place, and afterward its quantity; for example, I leave Titius my estate of thirty iugera. But taxatively if the quantity is expressed in the first place, then the thing; for example, I leave three gold pieces in such a box. But the circumstances of things must be weighed, and from them the intention of the contracting party must be investigated. - Gur. 794; Lugo d. 23. nn. 111, 112; Resp. Mor. 1. 6. d. 17; Inst. 1. 2. t. 20. § 29 ff.; C. A. 562, 675, 676, 677, 901; C. L. 1745, 1746.