Section — Koch–Preuss
Section 3: Nature and Division of Contracts
- DEFINITION.—A contract (contractus, pactum) is a mutual agreement between two or more parties, recognized by law as creating an obligation to do or to omit a particular thing, and productive of a permanent claim in one or both parties.
- CONDITIONS NECESSARY FOR VALIDITY.—To be morally valid and binding, a contract must comply with certain conditions, both on the part of the contracting parties and as to matter and form. With due regard to the properties which belong to a contract by natural law, positive legislation may and does regulate the details with regard to conditions as well as concerning different forms of contracts, in conformity with natural justice and the common welfare.
a) The parties to a contract (subiectum contractus, contrahentes, paciscentes) must be naturally and legally capable of entering into an agreement, and they must enjoy the use of reason and freedom of action, because a contract is a human act.
b) The matter of a contract (materia sive obiectum) must be something morally and physically fit to form the object of an agreement.1 Hence an agreement which violates an inalienable right of one of the contracting parties, or of a third party, or the laws of morality, or which demands something impossible, is immoral and therefore invalid. If, however, a man has performed an evil deed in conformity with a contract into which he has entered, he may, without committing an additional sin, receive and keep the reward due to him, though it would be better to devote it to some good purpose (ad pias causas).2
1 J. P. Gury, S. J., Comp. Theol. Mor., Vol. I, n. 726: “A contract is an agreement by which one or more persons bind themselves toward one or more others to give, do, or omit something.” Idem, ibid., n. 727: “The matter of a contract generally consists of things and deeds, or all those things which can fall under human dominion and over which contracting parties have full ownership and free administration. The matter of a contract must possess various conditions; namely, it must be possible, existent, honorable, proper to the contracting party, and certain. 1. Possible, both physically and morally, because no one can be bound to the impossible; 2. Existent either in fact or at least in a certain hope, or probably going to exist, otherwise no right over it could be had; 3. Honorable and lawful, that is, prohibited by no law, because an obligation concerning a dishonorable and forbidden thing cannot be given, as is evident; 4. Proper to the contracting party, as is evident from the definition, for no one can transfer to another a right which he himself does not have; 5. Certain and determined, whether as an individual thing or in quantity and quality, for otherwise the contract would be illusory.” Cfr. Lehmkuhl, S. J., Theol. Mor., Vol. I, 11th ed., n. 1240 sqq.
2 St. Thomas, Summa Theol., 2a 2ae, qu. 32, art. 7, ad 2; qu. 62, art. 5, ad 2; qu. 87, art. 2, ad 2.—St. Alphonsus, Theol. Mor., l. III, n. 712 (ed. Gaudé, II, 176).—J. P. Gury, S. J., Comp. Theol. Mor., Vol. I, n. 730.—S. Poenit., d. d. 23 Apr. 1822: “A penitent woman is not to be compelled, but is to be exhorted to expend the price of prostitution for pious uses, according to the judgment of a prudent confessor.”
An immoral contract is per se invalid and binds no one. But since the matter or object may be separated from the motive, one who has demanded and received an immoral act from another, may be obligated to perform his part of the bargain, provided the act demanded of him is possible and honorable. A man who hires another to set fire to the house of a third, enters into a contract which is per se invalid. If the hireling lives up to his part of the agreement, is the hirer obliged to pay him the promised sum, and may the hireling keep the money? The answer is yes, regardless of what may be said of the disproportion existing between the sin and its reward. The reward is paid not on account of the sin involved in the undertaking, but on account of the material performance, which is not in itself sinful, since the malice lies not in the deed itself, but in its form and motive. The reward is given for the labor performed, for the care involved in the choice of the proper means, and for the risk assumed in the undertaking. That the hireling is thereby encouraged to commit other similar crimes aggravates the sinful character of the contract, but is not a sufficient reason for withholding the contractual reward, to which he has a right. He may retain the wage for his labor, even if that wage exceeds the one usually paid for similar material labors, because the risk involved is exceptional. From the moral point of view, money thus received is rated as ill-gotten gain, and whatever portion of it is not needed for the sustentation of life, is subject to restitution, though it need not be given back to the person from whom it was received, but may be donated to charity.3
3 F. X. Linsenmann, Lehrbuch der Moraltheol., pp. 533 sq.
If a man has made a present to a woman with the intention of seducing her, she may keep the gift, even though she did not commit the sin demanded of her. The reason is that there was no pactum de peccato patrando.4 But, as Göpfert observes, “the acceptance or retention of such a present may involve the sin of scandal, namely, in so far as the donor may thereby be encouraged in his evil purpose by the hope of fulfilment.”5
4 Gury, op. cit., Vol. I, n. 731: “It is asked whether, if a man has given something to a woman in order to seduce her, she may retain the thing after refusing consent? The answer is affirmative, because no agreement concerning the commission of sin intervened, and therefore the donation is to be regarded as entirely gratuitous.” Cfr. Lehmkuhl, Theol. Mor., Vol. I, n. 1248–1251.
5 F. A. Göpfert, Moraltheologie, Vol. II, p. 152.—Cfr. J. Kelleher, “Immoral Contracts,” in the Irish Theol. Quarterly, Vol. IV, (1909), No. 15.
c) Formally, a contract demands a mutual, serious, and perfectly free internal consent (consensus internus,) manifested by some external sign or signs (consensus externus). Extremely vague terms, a lack of express acceptance of the promise given, or any essential error with regard to the object or nature of a contract, render that contract invalid, because in such cases there can be no true agreement of the will between the parties concerned. A non-essential error, on the other hand (e. g., concerning an accidental quality of the matter), does not affect the validity of the contract, unless the contract was caused by this very mistake. If this was the case, the contract, if it was a gratuitous one, is null and void because gratuitous contracts presuppose free consent. Grave fear, unjustly caused, so long as it does not deprive the subject of the power of clear thinking, does not, ex iure naturali, render a con- tract invalid, but gives the party who acted under the influence of fear the right to renege the obligations incurred.6 Force, which deprives one of the contracting parties of his liberty, renders a contract null. A signature obtained by force is, therefore, legally worthless and does not bind the signer in conscience.
6 J. P. Gury, S. J., Comp. Theol. Mor., Vol. I, n. 737, 740–747; J. E. Ross, Christian Ethics, p. 297; M. Cronin, The Science of Ethics, Vol. II, pp. 305 sqq.
The so-called gratuitous contracts (vide Sect. 4, infra) are not affected in their validity by a non-essential or an accidental error, for consent to its substance is sufficient to make a contract valid. Accidental errors easily occur in legal affairs, and it would give rise to numerous inconveniences if contracts were invalid or could be declared void because of a non-essential error. If, however, the error was substantial and caused by intentional deceit on the part of one of the contracting parties, and the other party was induced by it to make the contract, the deceived party has the right, upon discovery of the error, to rescind the agreement. Some authorities regard the contract as invalid in such a case. Most others consider it valid as long as the deceived party does not demand its dissolution. The latter, consequently, has it within his power either to let the contract stand, if he wishes to do so after he has discovered the error, or to have it revoked, i. e., to demand of the other party that it be regarded as null and void.7
7 V. Cathrein, S. J., Moralphilosophie, Vol. II, 5th ed., pp. 355 sq.
Slight fear8 does not by natural law invalidate a contract, for if it did, every contract would be doubtful, as there are people who seem to be in a constant state of dread and can be induced to make a promise or sign an agreement only if inspired by fear or placed under moral pressure. Slight fear, even if unjustly inspired, does not destroy freedom of decision. On the contrary, fear often makes a man cautious and teaches him to give special attention to the business in hand. Hence it would not be right to say that slight fear invalidates gratuitous, or even onerous contracts (the latter if fear was the principal reason for, or the occasion of, making the contract) in foro conscientiae, but such fear may be a reason for demanding the dissolution of an otherwise valid contract.
8 See this Handbook, Vol. I, p. 116.
- DIVISION OF CONTRACTS.—Contracts are commonly divided as follows:
a) With regard to the effects or the obligation involved (α)—into unilateral (unilaterales) and bilateral (bilaterales), according as they give rise to an obligation of justice in one of the parties only or in both; (β) into gratuitous (gratuiti) and onerous contracts (onerosi), according as one of the contracting parties receives a utility without a corresponding burden, or the burden is distributed between both; (γ) insurance or social contracts, which aim not at profit, but at securing rights of property.9
9 F. X. Linsenmann, Lehrbuch der Moraltheologie, pp. 535 sq.
b) Distinguished according to form, contracts are divided into (α) solemn, (β) public, (γ) private, depending upon the legal formalities by which they are accompanied.
c) With reference to their object, contracts may be ecclesiastical or civil, and they may or may not affect property rights.
d) Distinguished according to the law by which they bind, contracts are divided into natural contracts and contracts of civil obligation.
Other divisions are of minor importance.
The division of contracts evolved by the casuists, says Linsenmann, does not flow from their internal nature. Some of them are merely the product of a legal fiction, which cannot be carried to its logical conclusions in the ulterior development of the law. The distinction between unilateral and bilateral contracts, for instance, is opposed to the very nature of contracts. The distinction between gratuitous and onerous contracts is purely extrinsic and not quite accurate. In Moral Theology, at least, every contract is not only bilateral, but also onerous, though the consideration involved does not always consist in a definite, material quid pro quo enforceable under the law, but at times is purely ethical and ideal. But even in regard to the material quid pro quo jurists and casuists cannot determine sharply which species of contracts naturally postulates it and which does not. It does not lie in the nature of a loan contract that it is sometimes (commodatum and mutuum) rated as gratuitous and sometimes (locatio, conductio, etc.) as onerous.10
10 Linsenmann, op. cit., p. 536.
READINGS.—Th. Meyer, S.J., Inst. Iuris Nat., Vol. II, pp. 210 sqq.—Sporer-Bierbaum, Theol. Mor., Vol. II, 2nd ed., pp. 631 sqq.—St. Alphonsus, Theol. Mor., l. III, n. 707 sqq. (ed. Gaudé, II, 174).—J. Schwane, Die theologische Lehre über die Verträge, Münster i. W., 1871, pp. 8 sqq.—J. E. Pruner, Lehre vom Recht, Vol. I, pp. 336 sqq.—F. X. Linsenmann, Lehrbuch der Moraltheol., pp. 533 sqq.—V. Cathrein, S.J., Moralphilosophie, Vol. II, 5th ed., pp. 352 sqq.—A. Vermeersch, S.J., Quaestiones de Iustitia, 2nd ed., pp. 363 sqq.—M. Cronin, The Science of Ethics, Vol. II, pp. 298 sqq.—J. E. Ross, C.S.P., Christian Ethics, pp. 294 sqq.—T. Slater, S.J., in the Catholic Encyclopedia, Vol. IV, pp. 332 sq.