Section — Marc, Institutiones Morales
§ 3. On the Obligation of an Invalidating Law
Suarez, de Leg., l. 5, c. 19; De Lugo, de Jure et Just., disp. 22, s. 9, n. 249; Reuter, n. 231.
- DEFINITION. An invalidating law is that which establishes that some act, otherwise firm and valid, when certain conditions occur, is infirm and invalid, or at least to be invalidated.
It concerns vows, oaths, contracts, benefices, religious profession, matrimony, absolution from censures, delegation of jurisdiction, election of a prelate. Cf. n. 1051.
It differs 1. From a law simply prohibiting; because this makes the act which it forbids illicit indeed, but not invalid. To this point belong the words of right: Many things are prohibited from being done, which, if they shall have been done, obtain the firmness of force (c. 16, de Regular.).
- From a law not assisting an act; which neither confirms nor weakens an act, some contract, for example, a game, and leaves such a thing as it was by force of natural right; and therefore obliges a judge only to this, that in the external forum he take no account of that act (Bouquillon, Theol. fund., n. 149).
DIVISION. An invalidating law is distinguished in many ways:
By reason of the thing which is affected, one is directly invalidating, when it pronounces an act absolutely void, for example, a donation made to an incapable person; another is indirectly invalidating, when it rescinds the instrument of an act not duly made, that is, when it prescribes a certain form, or solemnity, to be observed in the act, so that without such form the act does not subsist.
By reason of the obligation induced, one is purely invalidating, another at the same time prohibiting, according as it either only rescinds the act, or at the same time also prohibits it (cf. the things soon to be said, n. 189).
By reason of application, one is invalidating by the fact itself, when by the law itself the act is declared null, so that the sentence of a judge is not required, for example, clandestine marriage; another is ferendae sententiae, when the act is pronounced only to be invalidated through the sentence of a judge, for example, a contract entered upon by a minor to his own detriment.
By reason of the mind of the legislator, one is penal, when it assigns invalidation in hatred of the transgressor, for example, the invalidation of the conferral of a benefice on account of the crime of simony; wherefore if fault was lacking, for example, on account of fear or ignorance, no invalidation is given. Another is purely invalidative, when it is introduced not in hatred of anyone, but on account of the common good, for example, a law invalidating contracts, or testaments, or marriages, when the form prefixed by law has not been observed. Hence this invalidation is called legal, and obtains, even if invincible ignorance is present. Sometimes, however, invalidation is legal and penal at the same time, for example, in the impediment of crime (n. 2038, Question).
- PRINCIPLES. I. Any supreme legislator can make invalidating laws. The reason is, because this is required for the common good; for otherwise frauds, dangers, and other grave inconveniences could not sufficiently be impeded and driven away from human society. Indeed, as regards the Church, it is of faith that she received from Christ the Lord the power of making laws of this kind concerning sacred things, for example, concerning the contract of matrimony (Salmant., de Leg., c. 2, n. 87).
Moreover, neither is the power of the civil legislator to be doubted, on account of the reason adduced. The question is only whether in fact he has used this power. The matter in each right is controverted on both sides as probable.2
Moreover, because an invalidating law, as being odious, is of strict interpretation; therefore, before sentence has been given by a judge, it is not judged to oblige in conscience; whence in practice one must stand for the possessor, until the sentence of the judge shall have established otherwise (cf. n. 1054).
(2) Indeed, in matters pertaining to justice, a sharp discussion is continued even in our times. Vermeersch, de Justitia, n. 324 ff. But in matrimonial matters the opinion of those who say that civil power can truly invalidate certain marriages of unbelievers is safe.
- II. Every law which commands, or permits, the invalidation of an act to be made, has force only after the sentence of the judge. This is clear from the terms themselves.
Hence: 1. An act, so long as it is not invalidated, remains naturally valid, even if the invalidation is maliciously impeded, whether by the author of the act, or by the judge, or by any other person whatever. Thus, for example, he who in good faith contracted with a minor can use the thing contracted, until the contract is rescinded by the sentence of the judge. Likewise, a vow or oath rightly emitted by a religious is valid and obliges, as long as it has not been invalidated by the Superior (IV, n. 48).
- Once an act or contract has been rescinded by the sentence of a judge, it is not lawful to use it; because, even if there were doubt concerning the sense or concerning the justice of the law commanding invalidation, nevertheless there is no doubt concerning the power of the judge in such a case. Wherefore obedience must certainly be given to him when commanding (I, n. 99).
- III. A law which certainly invalidates an act by the fact itself has invalidating force before sentence, and obliges in conscience to all other things which intrinsically follow from the invalidation. The first part is clear of itself. The other is proved from this, that from such a law the act is null, and consequently confers no right. For when the foundation is taken away, all things which rest upon it fall down (Suarez, de Leg., l. 5, c. 20, n. 13).
Hence: 1. If that act consists in the acceptance or acquisition of some thing, there follows from the law the obligation neither of using nor enjoying that thing, as if it were one's own. 2. If the matter concerns matrimony, it is not lawful to approach the spouse, nor
to usurp other marital rights. 3. Similarly, if the matter concerns religious profession, it is not lawful to place acts proper to religious.
It was said: A law which certainly invalidates; for in civil matter it is not always easy to discern whether a law is truly invalidating or merely prohibiting; and if it is invalidating, whether it is invalidating before sentence, or only after the sentence of a judge. Therefore, in these doubts, recourse must be had to the rules which above (n. 172) we set forth concerning the interpretation of laws. But if the doubt remains invincible, one must stand for the possessor.
- IT IS ASKED. Whether an invalidating law obliges in conscience to omitting the act?
Resp. Affirmatively, if the law at the same time invalidates the act and expressly or tacitly prohibits it; otherwise, no. The reason is, because the obligation of law ought to be estimated from the intention of the legislator. Hence, speaking in itself, he does not sin who attempts to make acts naturally valid, prepared to obey when the judge shall have declared them null. Per accidens, however, it can easily happen that he sins, namely if he foresees that from his manner of acting enmities and grave damages will arise (Salmant., de Leg., c. 2, n. 100).