§ 1. ON THE MATTER OF CONTRACT

1035. DEFINITION. The matter of a contract is any possible, honest thing or action, estimable by a price, placed in civil commerce, proper to the contracting party, and determined.

1. Possible: for there is no obligation of impossibilities. Yet one can spontaneously promise a heroic action.

If the thing is possible only in part, the contract is valid for this part; because "the useful ought not to be vitiated by the useless" (Reg. 37, in 6). Except unless it was agreed in such a way that either the whole or nothing had to be furnished. But he who by his own fault causes the thing to become impossible is held to repair the damage. Cf. also n. 1057.

2. Honest: namely that it be opposed neither to laws nor to good morals; otherwise it would again be impossible. Yet it is enough that the thing be substantially honest; for a contract can be valid, although, on account of some accidental circumstance or on account of a mere prohibition, it is illicit; otherwise stipulations concerning labor performed on feast days would be invalid.

A difficulty can be moved concerning pacts about a shameful thing, or about things already owed from elsewhere. See below n. 1036.

3. Estimable by a price, that is, useful or reasonably pleasing; for "stipulations are made so that each one may acquire for himself that which is of interest to him."⁰³ Hence, agreements whose object is altogether useless or ridiculous are null.

a) The thing which becomes the object of a contract is not considered useful, or estimable by a price, if it only brings some advantage to the contracting party, otherwise showing the way, giving a loan for consumption could become the object of stipulation; - but it is considered useful if at the same time it gives advantage to another and imports something of burden on the part of the one furnishing. Thus a physician aiding a poor man from charity can stipulate a fee.

b) The hope of future things is held among all as estimable by a price, whence also things which are already in hope can constitute the object of a contract. Yet exception is made for the hereditary succession of a person still living, concerning which every stipulation or pact, among diverse peoples, is of no force; and this by the best right, lest from it there be an occasion of desiring the death of another.⁰⁴

Note. In German Law, every onerous disposition concerning one's own future goods and the succession of another living person is declared void (§ 310, 312). Notwithstanding this, religious who make profession can draw up a testament concerning future goods.

4. Placed in civil commerce. Outside commerce are public roads, rivers, etc., and, in Roman Law, every sacred thing (n. 852, 4).

As concerns spiritual things or things annexed to the spiritual, see the things said n. 545 and 584 ff.

5. Proper to the contracting party, that is, existing under the ownership of him who hands it over; because no one can transfer more right to another than he himself has.

Hence the buyer of a stolen thing does not acquire ownership of it. See nevertheless what is established by positive law concerning the repeated sale of such an object (n. 939 ff.). A contract can also be made concerning a thing to be furnished by another, in this sense, that the contracting party promises that he will take care that the thing be furnished by another.

6. Determined, either in the individual, or in quantity and quality; otherwise the contract would be illusory: as if I were to promise someone, for example, whatever animal, or grain in general, I would satisfy the promise by giving a gnat, or one grain of wheat; which would be absurd.

1036. Questions. QUAER. 1. Whether pacts and contracts ABOUT A SHAMEFUL or ILLICIT THING, for example about bearing an unjust sentence, about committing homicide, fornication, theft, etc., induce an obligation?

Resp. 1. Before the perpetration of the work, it is certain that such pacts are null. For justice cannot oblige to the illicit. Hence, when the work has not yet been perpetrated, the promised price ought not to be paid by the one party, nor can it be accepted or retained by the other (III, 712; H. Ap., X, 123).

Yet if someone has accepted a gift given by way of allurement, without a pact of perpetrating a bad thing, he can retain it without injustice, even when consent has been denied. For then the donation must be held as wholly liberal, even though it was made from the intention of seducing the donee.

2. After the perpetration of the work, it is certain that prostitutes can, at least from Roman Law (l. 4, ff., de Condict. ob turp. caus.), demand and retain their infamous gain without injustice. Thus commonly the authors with St. Thomas (2. 2, q. 62, a. 5, ad 2). Whence the Sacred Penitentiary on 22 April 1822 decided thus for the internal forum: "A penitent woman is not to be compelled, but is to be exhorted, that she expend the price of prostitution, according to the judgment of a prudent confessor, for pious uses."

But for other illicit actions there is controversy. Some, among whom are Adrian, Medina, Collet, Gousset, Lyonnet, Carriere, deny both the obligation of paying the agreed price and the faculty of retaining a price already paid. The reason is that a bad action is not saleable, nor can a contract previously null become valid through the completion of the work. This opinion is probable. Others, with Lessius, Lugo, the Salmanticenses, Sanchez, Lehmkuhl, Vermeersch, hold the affirmative opinion, and hold it the more probable and common one. The reasons are: a) the general Rule presses: "when one of the contracting parties has placed his part, the other is held to place his own"; b) the bad work already placed, although it is not worthy of a price as bad, is nevertheless estimable and useful to one and burdensome to the other. Hence, from the fact that the other places this work, there arises as it were a new unnamed contract: I do that you may give; I do that you may do (cf. Lehmkuhl, I, n. 1249; Vind. Alph., P. III, q. 15).

In practice, because true probability stands on each side, favor must be given to the possessor, unless the sentence of a judge has established otherwise, or a special circumstance has acceded. - Yet by no pact is the stuprator freed from his obligation who, under the promise of marriage, violated a virgin, as we have already said n. 959.

QUAER. 2. Whether the matter of an onerous contract can be a thing ALREADY OWED from elsewhere?

Resp. 1. Negatively, if it is already owed by title of justice. Thus, for example, a pact of doing or giving something for bearing a just sentence, for restoring a thing deposited, loaned for use, found, for abstaining from theft, detraction, etc., is of no force; for the other has a right to those things independently of every burden or price imposed on himself, and therefore a price already paid must be restored to him (IV, 216).

Yet it is probable that the whole price of some work can be accepted from several, if it thus profits each one as if it were being done for the sake of each one. Thus, for example, if Titius has hired you so that you may undertake a journey for the sake of some business, you will also be able to be hired by Peter, for transacting his business, for the same journey, provided the later mandate does not harm the prior one (III, 862).

2. Affirmatively, more probably, if it is owed only from charity, religion, or a similar virtue; for then from the onerous contract there arises a strict right which did not exist previously. Thus a rich man who was held from charity to rent a house to a poor man gratis does not sin against justice, although he injures charity, if he exacts the price of lease. Likewise, if someone accepts money for fasting in the time of Lent, he can retain it without injustice and without other sin. Cf. III, 713; IV, 216; Lehmkuhl, I, n. 1247.