Chapter II. On the Obligation of a Contract

The obligation of a contract is the bond by which someone by force of the contract is bound to give, do, or omit something.

785. Principles. - I. Any contract duly entered begets an obligation in the forum of conscience, at least on the part of one of the contracting persons; because in a contract some right is granted to one or both parties; but to every right there corresponds its obligation; therefore, etc.

II. A contract duly entered, unless the laws establish something else for a particular case, has force only among the contracting persons alone, or others who either hold their place or have cause with them, such as heirs, mandators, etc. The reason is that no private person can impose a burden on another unwilling person, or confer a benefit; nor otherwise do contracts have force except from the private will of the contracting persons.

III. A contract duly entered obliges not only to that which is expressed in the pact, but to all the consequences which equity, law, or usage require according to the nature of the agreement. The reason is that the contracting parties are judged to act with good faith, and for this reason to will not only what is expressly included in the stipulation, but also what is usually born from it.

Hence the intention of the contracting persons must be carefully investigated, if it can be clear and expressly established concerning it. But if it remains obscure and ambiguous, it can be explained both from the matter of the agreement, and from the usage of places, and from the character of persons. Finally, if after all things have been weighed the doubt cannot be removed, an amicable settlement is to be advised.

786. Questions. - It is asked, 1. To what does a contract liable to rescission oblige?

I reply. That contract can be called conditionally obliging, namely if the nullity is not invoked. The reason is that the legislator, for the good of peace, did not will that contracts of this kind be judged and be invalid except when their nullity was expressly invoked and obtained. This follows from the things said concerning the contracts of minors, wives, and interdicted persons, n. 762 and following.

It is asked, 2. Whether contracts entered without the formalities prescribed by law for their validity are valid and oblige in conscience?

I reply. There is a threefold probable sentence:

The first sentence affirms, because by natural law the consent alone of the parties suffices for inducing obligation, and human law does not remove a natural obligation between persons otherwise capable, although it denies a civil action. - Molina, etc.

The second sentence denies, because laws invalidating the aforesaid contracts are founded in the presumption not only of fraud, but also of common danger; since the common good requires that an occasion for any frauds whatsoever be removed; and therefore the law can and ought to remove also the natural obligation of a void contract in the external forum. - Lessius, book 2, ch. 19, etc.

The third sentence holds that in these contracts the possessor must be preferred until by sentence of the judge he is condemned to restore ¹. - Thus St. Lig., n. 711, where he adds: "This sentence must altogether be held in practice, from the fact that, since possession grants a certain right, the possessor cannot be despoiled of the thing unless the right of the other is established."

¹ More clearly Lugo (disp. 22, n. 251), who proves that this opinion is in reality futile. "The third, middle sentence says that a testament or contract made without any solemnity is not altogether null; but is valid for this, that the possessor can retain until he is condemned by sentence; but after the sentence he is bound to restore. It denies, therefore, that some right comes to be from possession; but," as he adds, "this seems to be the sole intention of the legislator, and thus by law and the usage of upright men it seems to have been received, that only a right of petitioning in judgment and of obtaining against testaments and contracts of this kind is given, but not that he himself who possesses ought to despoil himself, which would be too rigid."

787. • It is asked, 3. How does the obligation of contracts cease?

I reply. The obligation of contracts ceases: 1. By payment, or by the furnishing of any thing owed, or also by execution of the promised or otherwise owed object.

2. By novation, or substitution of a new debt for an old debt, which is thus extinguished; e.g. I promised you to give ten barrels of wine each year; now I agree with you that I am no longer bound to give wine, but a thousand francs: then the obligation of giving wine is extinguished.

3. By condonation, or the act by which the creditor, with full liberty, remits the debt to his debtor. For each one can cede from his right in all those things which do not regard the public good, provided he was not incapable of contracting.

4. By compensation, or a fictive and reciprocal payment, which has place when persons are debtors toward one another in turn.

5. By confusion, which has place when the obligation of the debtor and the right of the creditor are united in the same person, e.g. if the creditor becomes heir of his debtor, or the debtor of his creditor, or the same person becomes heir of the creditor and at the same time of the debtor.

6. By destruction or loss of the thing owed, which sometimes frees the debtor from obligation, as in merely gratuitous contracts, and sometimes in others, where fault of the debtor does not occur... But sometimes it does not free, e.g. if it has happened by fault of the debtor, or he has been in culpable delay... etc.

7. By rescission, or rescindability, which has place when a contract consisting of the essential conditions is dissoluble because of some defects. That contract is valid until it is rescinded, as was said above (C.C. 1234).

8. By prescription, concerning which it was said above, Treatise on Justice, n. 580 and following ².

² Among the modes by which the obligation of contracts ceases, besides others of lesser moment, the mutual dissent of the contracting persons can also not incongruously be numbered.

788. • It is asked, 4. Whether cession of goods frees from entire payment?

I reply, 1. Negatively as regards voluntary cession, excluding a special agreement between the creditors and the debtor, by force of which the latter would be wholly freed. The reason is that the creditors have not been made wholly unharmed by it, and therefore there still remains an inequality to be repaired. - St. Lig., n. 669. - Gousset, n. 772. - Vogler, n. 542. - See above, On Justice, n. 719.

I reply, 2. Negatively, even as regards judicial cession; for the privilege of cession consists only in this, that the unfortunate and good-faith debtor can no longer be urged judicially; therefore, if he acquires new goods, he must satisfy the creditors up to entire payment. St. Lig., ibid. Make exception if, from the circumstances of things, the creditors seem to condone all the old debts.

It is asked, 5. Whether one about to cede his goods can secretly reserve something to himself?

I reply, 1. Certainly he sins against justice if he retains things of great value, because he inflicts damage on the creditors.

I reply, 2. He who cedes his goods, if he is in great need, does not sin against justice if he keeps certain goods by which he may be sustained with his family until provision has been made for him through the judge. But after the fact those are not to be disturbed who retained for themselves things truly necessary to them, of modest value. - Vogler, n. 542. - Gousset, n. 772.

789. • It is asked, 6. By what signs can it be distinguished whether the law invalidates a contract ipso facto, because of defect of solemnity, or only after the sentence of the judge?

I reply. Scarcely, and not even scarcely, can wholly certain rules be given in this matter; nor do either theologians or jurists agree among themselves. Nevertheless, generally the law seems to invalidate ipso facto in conscience and before the sentence of the judge:

1. When the invalidation is founded in a law determinative of property; because it pertains to the Prince, by force of supreme power, to determine the dominion of things. Hence dispositions by which the reservation of necessary heirs is injured are void ipso facto.

2. When the invalidation regards an act harmful to the public good; because the Prince must have the power of impeding, and therefore of invalidating in conscience, civil acts harmful to the common good; otherwise he would not efficaciously impede disorder in society. Hence agreements on account of a base cause are void ipso facto on each side.

3. When the invalidation is directly founded on the motive of the public good; because otherwise the legislator would not sufficiently obtain his end. Thus dispositions of dotal immovables are void ipso facto.

But when it is difficult, as often happens, to apply the aforesaid rules, one must have recourse to the interpretation of Doctors and to custom.