§ III. On Merchandise or the Matter of Purchase and Sale

959. • Supposing those things which, according to what was said concerning contracts in general in n. 830 sq., are required for the matter of any contract; in this place concerning the matter of purchase-sale it suffices to establish for a rule:

All those things which are placed in civil commerce can be bought and sold, provided that no prohibition of law intervenes, such as in reality intervenes as to certain goods assigned in Law, whose sale is expressly prohibited either absolutely or at least in a certain hypothesis. And thus:

1. Outside the case of marriage, every pacting concerning the hereditary succession of a person still living is absolutely prohibited, even if that person himself consents.

2. In the hypothesis that the formalities to be observed by law are not observed by guardians and curators, the sale of goods pertaining to their wards is prohibited to them.

3. In the hypothesis that someone, unequal to paying his debts, has made cession of his goods, the sale of those same goods is altogether forbidden to him.

4. In the hypothesis that the goods of some debtor have been placed under custody by legitimate authority, the sale of those same goods is interdicted, unless those things to be observed by Law are observed in it.

5. Finally, under penalty of a monetary fine or prison, the sale (at least if it is done indiscriminately) of certain things is prohibited, which of themselves are harmful to social order either under a physical respect or under a moral respect.

960. • But in particular concerning the matter of purchase and sale a fourfold question is usually moved among Authors, namely:

Query 1° Is another's thing VALID matter of purchase and sale?

Resp. Negatively. Yet the buyer of good faith: 1° acquires the fruits of the thing bought according to what was said in n. 723; 2° can prescribe the thing, provided the conditions required for legitimate prescription are present.

Therefore the practice of those must be reproved who, when things stolen or lost have been bought in good faith, refuse to restore them to the owner appearing and seeking them back, unless the owner first refunds the price expended for the same.

Query 2° Whose is the thing bought by a buyer in his own name, for ANOTHER'S money?

Resp. We think it must be resolved that such a thing belongs to the buyer, so that he is not bound to hand over that thing to the owner whose money it was, provided he can otherwise satisfy his obligation of restoring. Yet except the case in which the money belonged to the Church, because then by Roman and Ecclesiastical Law the thing itself is acquired for the Church. Cf. St. Alphonsus.¹

Query 3° Is a thing which at the very time of sale has already perished apt matter of sale?

Resp. Negatively. But if only part of the thing has perished, the buyer will be free to vindicate that part to himself for an equitable price.

Query 4° Is a thing which can be validly sold also LICITLY sold in a case in which the buyer is foreseen to be going to abuse it?

Resp. The solution of this question must be sought from the doctrine which we set forth concerning cooperation in the sins of others. But in particular the rule which we handed down in the same place, n. 312, is valid here, namely: Since evil must not be presumed without reason, hence altogether, a special prohibition of law being excluded, it seems licit for merchants, by the sole title of commerce, to sell their merchandise to any buyer, provided 1° that those wares are indifferent things which can easily have a good use, although many in general abuse them, for example strong liquors, playing-cards, etc.; and 2° provided that in the very purchase or circumstances no evil intention of the buyer appears. But if these two conditions are not verified, the sale will either in no way be licit, or not except from a grave and proportionate cause, as we explained more broadly in the same place, n. 312.