Part — Konings, Theologia Moralis
FIRST PART: ON CONTRACTS IN GENERAL
- Definition. - A contract is an agreement through which one or several obligate themselves toward one or several others to give, do, or omit something.
Division. - A contract is chiefly distinguished:
1° Into unilateral (unilateral) or bilateral (bilateral). The former is made when one or several obligate themselves toward one or several not obligated, as in the contract of gratuitous promise. The latter is had when one or several obligate themselves toward one or several likewise obligated, as in exchanges.
2° Gratuitous or of beneficence, which is also called imperfect; or onerous, which is also called perfect. It is also called synallagmatic from the Greek words syn (with) and allasso (I exchange). A gratuitous contract is called one from which only one party receives an advantage (whether mutual obligation arises from it or not). But onerous is one from which each party receives an advantage. Therefore this division does not fall back into the preceding. For there are given gratuitous contracts from which mutual obligation is given, as loan for use, deposit, loan for consumption, etc.
But an onerous contract is again subdivided into commutative and aleatory. It is commutative if one contracting party gives a thing in one species and the other gives an equivalent thing or one of a diverse species. It is aleatory (contingent) if one gives a thing, but the other contracting party gives not a thing, but the probable hope of obtaining some thing; which hope, since it can fail, causes a contract of this kind to present the likeness of a game of chance.
3° Solemn (contract by deed or specialty) or simple (simple contract), according as it requires special formalities of law or not. Simple is subdivided into written (written) and verbal (verbal). (v) p. 475.
4° Named or unnamed according as it has a proper name, as for example sale, or lacks a proper name, for example I give that you may give, I do that you may do, etc. (p) p. 475.
5° Naked or clothed. A naked contract is called one from which in the external forum action is not given. Such is that which lacks the form required by law, but not precisely that in which the form prescribed by law has indeed been observed, but which cannot be proved in the civil forum because of defect of witnesses or instruments, and from which on account of this cause action is not given by accident. A clothed contract is one which besides the obligation of conscience produces an action in the civil forum.1
6° Formal or express (express), or virtual or tacit (implied). The former is one which is made by words, writings, or other signs explicitly manifesting consent. But the latter is one whose consent into the agreed thing does indeed exist really, but is manifested only implicitly by some saying or deed. Thus a physician exercising his art is judged to promise that he will do that which his profession requires. This contract is also commonly called a quasi-contract.
7° Real, which is not perfected in its species except by the handing over of the thing concerning which agreement is made, of which kind are pledge, loan for use, deposit, etc.; and consensual, which is completed by the consent alone of the contracting parties duly exhibited, of which kind is lease.
8° Pure or non-pure. Pure is so called when it is simple and burdened by no adjunct; non-pure, when it has something adjoined.
9° Of good faith and of strict right. That of good faith is one in which the judge can moderate many things from the equitable and good, namely those things which according to good faith are judged to be contained in the contract; such are purchase, lease, hire, management of affairs, mandate, deposit, pledge, partnership. Of strict right is that in which the judge is altogether bound to the words of the contracting parties, yet in such a way that they serve their manifested intention; such are testament, loan for consumption, donation. This pertains to the forum which they call "court at law"; but the former to the forum which is called "court of equity or chancery." In the forum of conscience equity is especially regarded.
10° In action (in action or executory), if it must afterward be committed to execution; or in possession (in possession or executed), if it is already committed to execution. "If, for instance, one person sells and delivers goods to another for a price paid, the agreement is executed, and becomes complete and absolute; but if the vendor agrees to sell and deliver at a future time and for a stipulated price, and the other party agrees to accept and pay, the contract is executory, and rests in action merely."1 From this contract there is given a right to the thing and a personal action; from that one, a right in the thing and a real action.
Notes to n. 828 - note sequence 1. (1) Crolly, De Contr. n. 1-4, 25. Notes to n. 828 - note sequence 2. (1) Kent, Vol. II. n. 450. Appendix annotation (υ), to n. 828. 3°. p. 337. col. 2. "The agreement is either under seal or not under seal. If under seal, it is denominated a specialty, and if not under seal, an agreement by parol; and the latter includes equally verbal and written contracts not under seal." Kent, T. II. n. 450. Appendix annotation (φ), to n. 828. 4°. p. 337. col. 2. "These" contracts "are divided by the civilians into four species. 1. Do, ut des: as when I give money or goods, on a contract that I shall be repaid in money or goods for them again. Of this kind are all loans of money upon bond, or promise of repayment; and all sales of goods, in which there is either an express contract to pay so much for them, or else the law implies a contract to so much as they are worth. 2. The second species is, facio ut facias: as when I agree with a man to do his work for him, if he will do mine for me; or if two persons agree to marry together, or to do any positive acts on both sides. Or it may be, to forbear on one side on consideration of something done on the other, as that in consideration A, the tenant, will repair his house, B, the landlord, will not sue him for waste. Or it may be for mutual forbearance on both sides; as that in consideration that A will not trade to Lisbon, B will not trade to Marseilles; so as to avoid interfering with each other. 3. The third species of consideration is, facio ut des: when a man agrees to perform anything for a price, either specifically mentioned, or left to the determination of the law to set a value to it. ... 4. The fourth species is, do ut facias: which is the direct counterpart of the preceding. As when I agree with a servant to give him such wages upon his performing such work: which we see is nothing else but the last species inverted; for servus facit, ut herus det, and herus dat, ut servus faciat." Blackstone's Comm. T. II. n. 445.
- In every contract three things are to be distinguished, namely essence, nature, and accidentals. 1° To the essence pertain those things without which the contract cannot exist. Thus, for example, in the contract of sale three essentials are given, namely thing, price, and consent. If one is lacking, there is no contract. If in place of price, for example, another thing is given, it will no longer be a contract of sale, but of exchange. 2° To the nature pertain those things which, although not expressed, are nevertheless understood to be comprehended in the contract from law, or custom, or equity, although they are not essential; for example security furnished against eviction of the thing sold, which could be excluded by the contracting parties without the sale being invalid. But if the condition is not expressed, the seller ought to furnish security for the thing sold. 3° Accidentals are called those things which can be adjoined to a special contract by agreement, without being judged adjoined by law or by the nature of the thing; for example such a delay of price, or other things of this kind. - Bouvier, etc.
These things having been premised, it occurs to treat 1° concerning the requisites for contracting; 2° concerning the obligation of contract; 3° concerning the modifications of contracts.