Article — Konings, Theologia Moralis
ARTICLE I: ON THE MATTER OF CONTRACT
- The matter of contract generally is things and deeds, or all those things which can fall under man's dominion, and concerning which the contracting parties have free administration.
The matter of contract ought to enjoy these conditions, namely it ought to be possible, existing, honorable, proper to the contracting party, certain, estimable by price.
1° Possible, both physically and morally; because no one can be obligated to the impossible. Therefore no one can be obligated to avoid fortuitous events, since this is impossible. Hence if someone takes them upon himself, he obligates himself only to repair damages coming from them.
2° Existing, either in reality or at least in certain hope, or probably going to exist; otherwise no right could be had in it, as being something estimable by no price.
3° Honorable and licit in itself, that is, prohibited by no right; because no obligation can be given to a dishonorable and prohibited thing. But for the validity of a contract it is enough that the matter be substantially honorable; for a contract can be valid, although illicit on account of some accidental circumstance.
4° Proper to the contracting party; for no one can transfer to another a right which he himself does not have. Hence the sale of another's thing is invalid, at least as to the transfer of the thing, although not always as to the transfer of the price.
5° Certain and determined, whether in individual, or in quantity and quality; otherwise the contract would be illusory, as if I promised someone, for example, any animal whatever, or grain in general. For I would satisfy the promise by giving a gnat or one grain of wheat, which would be absurd.
- Questions. - Query 1° Can you accept a price for your action already owed to someone from justice, if the same action can profit another, with the right of the prior one to whom it is owed uninjured?
Resp. Affirmatively. The reason is that you do not injure the right of the former, with whom you had contracted, and you furnish yourself useful to the latter. Thus, for example, if Titius has hired you to go to a certain place for the sake of transacting some business, you can also be hired by Peter to make that journey for transacting a new business, provided the later mandate does not harm the former. See L. IV. 862.
Query 2° Can a price be accepted for a thing owed, not indeed from justice, but from another virtue, for example if you accept money to fast in the time of Lent?
Resp. Affirmatively, at least more probably, because that price then by donation acquires a right which it previously lacked.1 Nevertheless, it is supposed that the action or thing to which the donee is bound is estimable by price; otherwise the contract would be invalid. Hence he would be bound to restitution who exacted money for showing the way to a man passing by, when he can show it without any labor or loss of time; for that action is not estimable by price.
Query 3° Is the contract valid if the matter is only partly possible?
Resp. Affirmatively, if the thing is divisible in itself and contract was made concerning it divisibly; otherwise, if it is indivisible or agreement was made concerning it indivisibly. Hence, for example, if you bought 100 measures of wheat, so that the contract is not perfect unless the thing has been handed over, and 50 perish, the contract still holds for the remaining 50. But if you promised a watch, and learn that you have only a partial right in it, your promise will be null.
Notes to n. 831. (1) L. IV. 713.
- Query 4° Can a merely spiritual thing be the object of a contract, whether gratuitous or onerous?
Resp. to the 1st. Affirmatively. For nothing in natural right stands in the way, since agreements of this kind have nothing disordered; nor does divine right, since God has permitted, indeed commanded, the gratuitous communication of spiritual things. Thus from the obligation of fidelity you can promise prayers, Masses, Relics, etc.
Resp. to the 2nd. 1° Affirmatively, if the thing is spiritual on each side and no prohibition of the Church stands in the way, because then no simony can be present in the exchange, since there is no comparison of a spiritual thing with a temporal one.
2° Negatively, however, if a merely spiritual thing is on one side, but a temporal one on the other; because no comparison between the spiritual and the temporal can be given, as is established from what was said concerning Simony, n. 352 and following.
- Query 5° Can the matter of an onerous contract be a temporal thing annexed to a spiritual thing?
Resp. 1° Affirmatively, if it is annexed antecedently, the prohibition of the Church in particular cases being set aside, provided nevertheless that the price is not increased because of the spiritual thing annexed. - See what was said concerning Simony, ibid.
Resp. 2° Negatively, if it is annexed consequently, at least from ecclesiastical Law. But this question chiefly regards benefices.
Resp. 3° But if it is annexed concomitantly, distinguish: 1° Negatively, if it is annexed intrinsically and necessarily, because then the temporal thing has no value independently from the sacred thing, such as is the labor of the priest in celebrating, absolving, etc. - 2° Affirmatively, however, if it is annexed extrinsically, as was said concerning Simony, ibid.
- Query 6° Must a thing received from a base contract always be restored?
Resp. 1° Before the placing of the base work, affirmatively; because the dominion of this thing has not been validly transferred. - Thus all.
Resp. 2° After the placing of the work, it is controverted. A twofold probable opinion is given.
The 1st Opinion, common and more probable to S. Alph.,1 says that the price can be accepted and retained, indeed also must be given from justice. The reason is 1° because there intervenes there a twofold contract: one absolute, namely concerning a base work to be placed for a price, and this is void; the other conditioned, concerning the handing over of the price if the base work has been placed, and this, when the condition has been fulfilled, becomes valid. For once the work is placed, there now arises the contract, I give that you may give, whose nature demands that always, as often as one contracting party has furnished his own part, the other be bound to fulfill his own if he can do so licitly. 2° Because although the base action, insofar as illicit, is worthy of no price, nevertheless, insofar as laborious, ignominious, dangerous to the agent, it has a price.
The 2nd Opinion, sufficiently probable, denies it, from Rule of Law 18 in the Sixth: What does not stand by right from the beginning is not confirmed by the passage of time.2 Our law agrees.3
Therefore for the internal forum the possessor must be favored. But according to the patrons of each opinion, and Resp. S. Poen. (Scav. T. II. n. 393), the price of prostitution can be retained.
Query 7° Whether, if a man has given something to a woman in order to seduce her, can she, after consent has been denied, retain the thing?
Resp. Affirmatively, because no agreement concerning sin to be perpetrated intervened, and therefore the donation must be held altogether liberal, since the woman promised absolutely nothing on her part.2 Yet the one accepting will with difficulty be excused from the sin of scandal and cooperation,3 if she knows with what mind the donation is made.
Notes to n. 834 - note sequence 1. (1) L. IV. 712. Vind. P. III. q. XV. Ed. 2a. q. XVI. (2) H. A. X. 128. (3) Kent, Vol. II. n. 466. Notes to n. 834 - note sequence 2. (2) L. V. 69. q. 1 et H. A. IV. 81. (3) L. V. 81.