§ II. On Those Who Can Buy and Sell

957. • All those can enter the contract of purchase-sale who are naturally capable of contracting and are not declared incapable by positive law. But by our law a twofold class of citizens is declared incapable. The first is of those who are declared incapable of any contract in general, and consequently also of the contract of purchase and sale. The second is of those who are declared incapable specifically for the contract of purchase and sale in the cases assigned by law.

To the first class pertain: 1° minors, who can buy only those things which are necessary, in the sense declared in n. 837, 1°, and concerning which provision would not be made by parents; 2° wives, who nevertheless can: a) buy those things which pertain to the daily necessities of the family and to their own condition and decent support; b) sell all things of which they have full dominion and buy from these; c) in many States conduct commerce separately from the husband; d) sell and buy jointly with the husband as to common goods, n. 607. In what manner spouses can sell something to each other, see n. 840; 3° interdicted persons; 4° aliens as to immovables in certain States, as was said in n. 844.

To the second class chiefly pertain 1° Officials of the Supreme Government, of States, of Municipalities, etc., who cannot buy things which they sell in the name of the Supreme Government, State, Municipality, etc.

2° Agents (agents), who generally cannot buy that kind of merchandise which they sell in the name of another.

3° Guardians "cannot act for their own benefit in any contract, or purchase, or sale, as to the subject of the trust."¹

958. • Query. What must be established for the forum of conscience concerning the value of the contract of purchase and sale entered by him who is indeed naturally capable, but civilly incapable?

Resp. With attention to the things handed down in n. 882, q. 1, we think it can probably be defended that such a contract, according to the mind of the civil legislator, is not ipso facto invalid in conscience; but that its invalidity must be declared by the judge. Whence, before the judge has declared the nullity of the contract, neither contracting party is bound from justice to withdraw from the agreement once entered, provided it can be judged naturally valid and just. Yet generally we think it must be said that the obedience owed to civil law demands that an incapable person not enter a contract, and that a contract not be entered with an incapable person; unless perhaps it is a question of those contracts which daily use and common prudence, with civil law neglected and the government silent, have made as it were legitimate, and in which the capable party abstains from every fraud or malicious art. Indeed, as to these contracts it seems able to be reasonably presumed that the civil legislator did not wish to comprehend them so strictly under his incapacitating law; indeed in such a way that the incapable party, to whom the petition for a declaratory sentence of nullity is conceded by Law, by the persuasion of equity would by no means be suited to urge his supreme right as to such contracts and pursue it in judgment.