ARTICLE III: On the Obligation of Contract

1055. DEFINITION. The obligation of contract is the bond by which someone, by force of the contract, is bound to giving, doing, or omitting something.

DIVISION. An obligation is one thing merely natural, another merely civil, and another mixed. - A merely natural obligation is that which indeed binds conscience, but gives no civil action in the external forum; a merely civil obligation is that which gives action in the external forum, but has no force for conscience, except by accident, for example on account of scandal to be avoided. A mixed obligation is that which has force for each forum, as obtains in contracts which are entered upon according to legal form.

1056. PRINCIPLES. I. Any contract produces a true obligation in the forum of conscience, whether in both contracting parties or in either one, according to the nature of the agreement.¹⁰ For the mind

self-binding is of the essence of a contract; for that reason it is held as the likeness of law with respect to the contracting parties (III, 707). - It is always a question, as is clear, of an obligation of justice; the contract of promise alone is excepted (cf. n. 1062).

The contracting parties, or those holding their place, for example heirs, are held not only to those things which are stated in express words, but to all those things which, on account of the nature of the contract, law, or prevailing custom, are considered implicitly agreed upon. Hence, for example, the seller is held concerning eviction, even if nothing has been expressed about this (cf. the things said n. 1032).

1057. • II. In a qualified contract, the obligation must be determined from the nature of the clause added. The principal clauses which are usually added are the following: 1. under mode; - 2. under day; - 3. under demonstration; - 4. under alternation; - 5. under condition.

1. MODE is a circumstance by which a burden not included in the substance of the contract is imposed on one party.

A contract under mode obliges immediately; nor nevertheless is the obligation extinguished from the mode not having been observed, unless it has been otherwise agreed. Thus, for example, the heirs of one who makes a legacy cannot vindicate for themselves an annual legacy, under the pretext that the mode is not observed, for example that Masses are not celebrated; but they have only the right of compelling the legatee to celebrate the Masses, or to take care that they be celebrated.⁰¹

2. A contract to a certain day, or to a day certainly coming at some time, for example when the father will die, produces obligation immediately; nevertheless the debtor is not held to fulfill it before the day.⁰²

If the obligation is to an uncertain day, for example when the ship has returned from India, the contract is resolved into a conditional one, and follows the laws of this.

3. A contract under demonstration is that in which certain words are added for the sake of designating the thing or person.

If the error is in quantity, it must be distinguished thus: a) If the quantity was designated demonstratively, that is, if the thing is expressed in the first place and afterwards its quantity, for example I leave to Titus my estate, of thirty acres, the whole is owed. - b) If it was designated taxatively, so that in the first place the quantity is expressed, then the thing itself, for example I leave three gold coins in such a little chest, the excess of quantity is not owed, unless from adjuncts something else is established.

4. A contract under alternation is that in which among several things something is designated indeterminately, to be furnished according to the will of one of the contracting parties, for example I promise an ox, or a horse. Cf. D'Annibale, II, 328.

If because of the destruction of one thing election becomes impossible, by the fault of the creditor, the debtor is freed; if it happened by the fault of the debtor, the creditor can seek the surviving thing, or the valuation of the other; if it happened by fortuitous chance, the contract can be called null. See what we said n. 632, Quaer. 1; cf. Austrian Code, 906-907.

5. CONDITION is a circumstance added to a contract, upon whose existence we will the value of that contract to depend. One is suspensive, another resolutive. It is called suspensive when the beginning of the obligation depends on fulfillment of the condition; resolutive, when an obligation already existing is revoked or resolved through the event of the condition, so that it is considered never to have existed (cf. Porpora, tr. XI, n. 72; German Code, 158; Austrian, 696 and 897).

Here in the first place it is a question of a SUSPENSIVE condition, since it properly makes the contract conditioned. It has various effects, according to the diversity of the thing about which there is question (VI, 890).

a) If the condition is concerning the present or the past, and in fact exists, the contract is valid immediately; otherwise, if it does not exist, although this is unknown, it is not valid. Similarly, it is valid if the condition is concerning a necessary future. b) If the condition is concerning a contingent future, there immediately arises an obligation of waiting and of not impeding the event of the condition; but when the condition has been placed, the contract passes into an absolute one, without it being necessary to renew consent: thus more commonly. c) If the condition is impossible or shameful concerning the future, it irritates the contract; because, if it is impossible, it is a sign that serious consent is not present, but rather dissent; but if it is shameful, or illicit, concerning the future, it cannot induce obligation, as one alluring to sin. See the things said n. 1036. Yet in CIVIL Law, donations on account of death, or last wills, are excepted, and in French Law also donations between the living, in which shameful or impossible conditions are held as not added. Thus, for example, if someone leaves you money under the condition that you profess heresy, or that you imbue children with heresy, the legacy is valid, although you are unwilling to fulfill the impious condition. The same is established, in CANON Law, concerning a shameful or impossible condition added to marriage, as we shall see in its place (n. 1973, q. 3).⁰³

Yet if it were established that the donor or testator plainly wished his liberal disposition to depend on the express condition, the donation would not be valid.

Note. A condition must be fulfilled in its proper species, nor is it enough that it be fulfilled equivalently, unless it is sufficiently established that the contracting parties wished otherwise. As often as the fulfillment of a condition is impeded by one of the contracting parties, he sins and ought to perceive no benefit on account of the condition not fulfilled. Hence, if it has failed by the deed of him who ought to have fulfilled it, nothing is owed to him; if by the deed of him who ought to have furnished something, he is obligated;⁰⁴ if by the deed of neither, the obligation ceases (D'Annibale, II, 309; German Code, 158; cf. ib., § 134, 138, 308).

1058. • III. The nature and quantity of an obligation are to be estimated from the will of the contracting parties. Hence, if the will was clearly expressed, one must altogether stand by it. If it was expressed less clearly, it is to be interpreted from the equitable and good. Generally the rules for the interpretation of laws come to be applied here (III, 707). See D'Annibale, II, 331.

Hence: 1. The intention of the contracting parties, rather than the literal signification of words, must be examined in doubt. 2. If a clause admits a twofold sense, it must be understood in that sense in which it can produce some effect; for the contracting parties are to be presumed to have wished to effect something. 3. Equivocal words are to be accepted in that sense which better squares with the matter of the contract. 4. What is ambiguous must be interpreted according to the custom of the place where the contract was celebrated; because custom is the best interpreter. 5. Clauses customarily appended, if they have been omitted in the contract, are to be held as appended; because each one is presumed to contract according to usage. 6. Clauses must be interpreted one from the others, so that to each is given that sense which is argued from the whole act; for interpretation must be made from the whole context. 7. In doubt, an agreement is to be interpreted in favor of him who contracted the obligation, since any obligation is to be accepted in the more benign sense.⁰⁵ Finally, if doubt, all things having been weighed, cannot be taken away, friendly TRANSACTION is to be counseled (cf. n. 1160).

1059. Questions. QUAER. 1. What obligation does a RESCINDABLE contract produce?

Resp. Before rescission has been denounced, it produces the same obligation as an altogether firm contract. Moreover, a contract can be rescinded by that party who has suffered injury, or who lacked sufficient capacity; and unless the matter is doubtful, or unless the law has defined that rescission is to be pronounced by a judge, it can be done by private authority. But if the contract is not rescinded within the useful time defined by law, it becomes altogether firm.⁰⁶

QUAER. 2. Whether a contract weak by law is firmed by an OATH?

Resp. Distinguish. A contract is declared weak or rescindable either on account of the common good of society, or on account of the private good of the contracting parties. In the former case, it is not firmed by an oath, which, since it is not a bond of iniquity, cannot induce the obligation of doing that which is against the common good. In the latter case, it is indeed firmed by an oath, but in modern Law it is firmed only in the internal forum, from the superadded bond of religion, from which there arises only a personal obligation, which does not pass to heirs; and the one swearing can obtain dispensation, because the other does not have strict right. Hence, the oath seems to be valid by which someone freely promises another that he will not revoke a testament or legacy made in his favor; because, in these and similar cases, the one swearing can yield his own right. Thus more commonly and more probably with St. Alphonsus (III, 177, 757).

You will ask whether that can be recovered which, by force of an oath alone extorted through grave and unjust fear, without another title, was paid? Resp. Some deny it, because an oath, on account of the honor of God, is to be understood simply and with effect; but an oath understood only of the momentary handing over of the thing would not be understood simply, and would be a true illusion. But very many others affirm it; both because that which must be restored can be recovered, and because by the payment made the oath has already been satisfied, nor is the reverence owed to the divine name violated by him who exacts reparation of the injury inflicted on himself. Nor was the handing over of the thing altogether illusory, because there is always danger lest the thing handed over to a thief can no longer be recovered (III, 174). Recall the things said n. 617, q. 3.

1060. Points to be noted. 1. The obligation of contracts CEASES in diverse ways, namely: a) by payment, or handing over of the thing owed; b) by novation, or the substitution of a new debt for an old debt: for example, I promised you grain; now I agree with you that in its place I shall pay a sum of money; c) by condonation or remission of the debt; d) by compensation: for example, I owe you one thousand francs, and for the same price I sell you a horse: the debt of each is extinguished; e) by confusion, that is, the conjunction of debt and credit in the same person, as if you become the heir of your creditor; f) by destruction or loss of the thing owed, which sometimes frees the debtor from obligation, as in merely gratuitous contracts, or also in others where the fault of the debtor does not enter; but sometimes it does not free, for example if it happened by the fault of the debtor, or he was in culpable delay; - g) by rescission made either by the consent of each party or by the will of that party which enjoys the faculty of rescinding; h) by prescription, as we said in its place (n. 900).

2. As concerns DAMAGES which arise from the non-execution of a contract, or from delay of payment, they must be repaired according to the principles explained where we treated the damager (n. 948).

Several authors in this place treat of the proof of obligations or payments in the external forum. These things can be read in the Codes themselves.⁰⁷