§ 2. ON PERSONS WHO CAN CONTRACT

1037. PRINCIPLES. I. By the law of nature, all those can contract who possess the use of reason and are not prohibited by law. The reason for the first: no one can impose an obligation on himself unless he is actually capable of a human action. See what must be said n. 1044, 4.

Hence, infants and the perpetually insane cannot contract; nor lunatics, the furious, the perfectly drunk and the half-drunk, in the time of failure of reason. But this incapacity is so absolute that, from the very beginning, it renders the contract INVALID, independently of every intervention of legislator or judge (Lugo, disp. 22, n. 281).

The reason for the second: human laws can, on account of the common good, limit the right of a private person and weaken contracts to that end, so that damage from inexperienced persons may be excluded, and provision may be made for the peace of families and the honesty of morals.

This incapacity renders the contract only WEAK or rescindable at the will of the incapable person, whose incapacity nevertheless can never be opposed by the capable party, except in the sole case of deception (cf. n. 1039, III). Moreover, if the conditions required by law, for example the consent of father, tutor, husband, are fulfilled, the contract becomes altogether firm; the same happens if the contracting party, after the incapacity has been removed, ratifies the contract, either explicitly or implicitly, namely by not manifesting his will of rescinding within the time established by law.

1038. • II. By positive law, all those are commonly declared incapable of contracting firmly who do not have the free administration of their own goods. Such are: minors, wives, interdicted persons, prodigals, the civilly dead, and foreigners.

Several cases besides have been established of relative incapacity: thus tutors and curators are forbidden to acquire goods of minors committed to their administration; similarly judges and magistrates are forbidden to acquire rights about which litigation is moved before their tribunal, etc. We shall not treat these separately. It is enough to have said that laws of this kind, since they are just, oblige in conscience.

1039. I. A MINOR can firmly contract in the following cases: 1. if it is a question of accepting a benefit which is granted to him altogether liberally; - 2. if it is a question of things pertaining to the commerce or art which he himself exercises with the consent of father or tutor; - 3. if he is emancipated, he can lease his work and enter upon other contracts which pertain to the mere administration of goods.

II. Apart from the aforesaid cases, a minor cannot alone by himself contract firmly; but in his name, or at least assisting him, father, tutor, judge must act, according to the diversity of circumstances which civilists explain. Hence, if he has contracted with the conditions which the law appended passed over, the contract is rescindable, and the judge can decree restitution in full, which is a replacing in the former state in which the thing was before the lesion (III, 918). But indeed, the disposition of law on this matter is not everywhere the same.

In FRENCH Law (1305) and ENGLISH Law (Crolly, I, 461), rescission is granted to a minor, not at will, but only if he was injured from the contract entered upon without due assistance, from the adage: "A minor is restored not as a minor, but as injured."

In ITALIAN Law (1303), AUSTRIAN Law (863), SPANISH Law (1300), and GERMAN Law (107-113), except nevertheless those indicated above, a minor can contract no civil obligation; and therefore he can rescind the contract without being held to prove that he was injured.

III. Rescission can be sought both by the administrator of the goods of the minor, and by the minor himself, and by his heirs; but by no means by those who contracted with the minor. A minor is excluded from the benefit of rescission if he fraudulently asserted that he was of age; or if, after he became of age, he approved the contract entered upon by himself as a minor.⁰² Moreover, he is held to restitution if by contracting he deceived others or inflicted damage on them. Cf. Austrian Code, 866.

In GERMANY nevertheless (n. 108), the other party also, who contracted with the minor, can withdraw from the contract until the necessary consent has been given, if he was ignorant of the defect of consent or minority.

In various places,⁰³ there is in force the disposition of law that, in the case of rescission, a minor is not held to restore the thing accepted except insofar as the thing still exists in itself or in an equivalent, while the other party is held to restore the whole of what he received.

1040. IT IS ASKED. Whether a MINOR, or those acting for his cause, can, in the forum of conscience, use the benefit of civil law?

Resp. 1. Authors commonly answer affirmatively with respect to simple rescission, since it is an apt remedy against the inexperience of minors; "for the counsel of ages of this sort is fragile and infirm, and subject to many deceits" (l. 1, ff., de Minoribus).

2. But there is controversy with respect to the disposition of law which excuses the minor from restitution, if the thing accepted, for example from a loan for consumption, no longer exists, neither in itself nor in an equivalent. For some affirm that the natural obligation of restoring remains. But others say that this obligation has been taken away by law, on account of the common good (Allegre, Cod. civ., in art. 1305; Bucceroni, I, n. 953). - Finally, others think that restitution must be made if the money was spent for useful and necessary uses, for which the father ought to have furnished it (Lehmkuhl, I, n. 1253). Wherefore we judge the condition of the possessor to be better, until it has been decided otherwise by a judge.

1041. 1. In every law provision is made that a WIFE, without the consent of her husband, or, in the case in which the husband has unjustly denied consent, without the consent of the judge, is prohibited from placing several acts. - The general rule is this, that without the consent of her husband she cannot FIRMLY contract.

It is called the general rule; for she is restricted by no special incapacity: a) with respect to a testament; - b) with respect to acts of mere administration concerning paraphernal or separated goods; c) with respect to commerce which, with the consent of her husband, she publicly exercises; d) with respect to the purchase of those things which are necessary for the support of the family. Recall the things said n. 863-871.

2. If the wife goes beyond the faculties conceded to herself, the contract is rescindable. But rescission can be sought both by the husband and by the wife herself, unless she acted fraudulently, and by their heirs. But then there is an obligation of restoring all that in which the wife or those acting for her cause have been made richer, or even in full, according to the diverse disposition of Law.⁰⁵

IT IS ASKED. Whether a wife or those acting for her cause can, in conscience, use the privilege of civil law?

Resp. The husband certainly can do this, or his heirs, since the law was made in his favor for just motives. - Nor are there lacking theologians who affirm that the wife herself can use the same benefit of law. Yet they deservedly add that, if she wishes to rescind the contract, she is held to restitution in full, even if the thing accepted no longer exists, neither in itself nor in an equivalent. For since the law was not made in her favor, it is deservedly concluded that the natural obligation of the wife has not been taken away by Positive Law.

1042. 1. INTERDICTED PERSONS⁰⁶ are those who by sentence of a judge are held incapable of exercising a civil act, for example on account of imbecility or dementia. For these a TUTOR is constituted, who acts in their name. Hence, all contracts which they enter upon are rescindable, and those acting for their cause, or they themselves restored to their rights, can seek their rescission. Moreover, an interdicted person is restored as interdicted, that is, without being held to prove lesion. But the interdiction is taken away when its cause ceases, not by the fact itself, but through the sentence of a judge.

2. PRODIGALS,⁰⁷ juridically denounced, are incapable for certain contracts determined by law. They cannot enter upon these without the assistance of a counselor designated by the judge.

3. The CIVILLY DEAD are called those who, on account of condemnation to a most grave penalty, are despoiled of all civil rights: they cannot dispose of their goods, but, any testament whatever being set aside, legal succession is opened. To these, in Roman Law, religious solemnly professed are to be reckoned (cf. n. 2156).

The penalty of civil death, in several kingdoms of Europe, has already been abrogated, and generally perpetual interdiction is substituted for it.

1043. 4. FOREIGNERS are those who, in the place where they are staying, do not enjoy the rights of citizens. These are governed partly by the laws of their fatherland, partly by the laws of the region where they dwell (cf. n. 208).

a) With respect to the form or solemnities of a contract, they generally must observe the laws of the place, because "the place governs the act." Yet several acts can or even must be completed before legates or consuls of their own nation.

b) With respect to other conditions of acts, they are governed by the personal, but not real, laws of their proper domicile. Thus, for example, a Frenchman can draw up a testament in England according to the form admitted there; but he is governed only by French law with respect to the capacity of his own person and with respect to the quantity of goods disposable. Yet the administration and alienation of immovable goods always depends on the laws of the place in which they are found. Cf. Nouv. Rev. Theol. (a. 1883), p. 602; German Code, Introductory Law, art. 7-28.