Article — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
Article I. On the Oath Added to a Contract
- An oath, as it is taken here, is the calling of God as witness of those things which are promised through a contract. The obligation of an oath also differs from the obligation of a contract in this, that the obligation of an oath affects and binds immediately the person of the one swearing, whence it does not pass to heirs; but the obligation of a contract confers on another a strict right, or right of property, affecting the goods of the contracting person, and therefore the obligation passes entire to the heirs.
- Principles. - I. Contracts void by natural law are not strengthened by an oath. The reason is that an oath is an act wholly extrinsic to the contract, and therefore can in no way supply its force. Hence the axiom: An oath follows the nature of the act. - Billuart. - Reuter, etc.
II. Nor are contracts ipso facto void by positive law strengthened by an oath. The reason is that the invalidating law rests on a motive of the common good and public order; therefore the oath would be against the common good, and therefore an immoral bond, which God, author of society, cannot sanction. - Thus more commonly with Billuart.
III. An oath is always invalid whenever it cannot be observed without the sin of the one swearing. The reason is that an oath cannot be a bond of iniquity, nor can it oblige against good morals. - Thus all Theologians.
- Questions. - It is asked, 1. Whether an oath strengthens contracts which are not indeed void by positive law, but only rescindable?
I reply, 1. More probably negatively, when rescindability is introduced with a view to the public good. The reason is clear from what has been said. Hence the oaths of minors, wives, and the like do not avail for strengthening contracts void by law, although the law has been established for their utility; indeed perverse men would always exact an oath from them, which would tend to the detriment of society.
I reply, 2. But more probably an oath is valid if the rescindability has been introduced for the private utility of the contracting persons; because each one can renounce a benefit established in his favor; but the interposition of an oath in that case is a certain renunciation of the benefit of rescission introduced in favor of the contracting person. Hence the oath seems to stand by which someone freely promises another that he will not revoke a testament or legacy made in his favor, because the one swearing can cede from his own right. - Thus more commonly. - Lugo, etc.
- It is asked, 2. Whether oaths extorted by fear are valid for strengthening contracts invalid of themselves because of fear?
I reply. A twofold probable sentence is given:
The first, more common sentence affirms, because from the motive of Religion the oath must be observed whenever it can be observed without sin. - St. Lig., De Iuram., n. 174. - Lugo, Billuart.
The second probable sentence denies, because the oath ought to follow the nature of the act; for an oath cannot confirm an act null by nature. Besides, the oath would be an act wholly useless, indeed ridiculous. For, e.g., after the handing over of money made by you to a robber by force of the oath, you could immediately recover the same money from the robber, even by employing force; which would be wholly illusory. - St. Antoninus. - Sanchez, etc.