§ 4. ON THE EXTERNAL FORM OF CONTRACT

1053. By EXTERNAL FORM is here understood the external manifestation of mutual consent. By the law of nature indeed, no determined mode and no peculiar conditions are required. But Positive Law commands that certain FORMALITIES sometimes be observed, and of these some are accidental, while others are essential. Accidental formalities are those whose omission does not weaken the contract, but obliges only to paying a penalty, or also deprives the contracting parties of civil action. Essential formalities are those whose omission invalidates the contract in the external forum.

In modern Law, the form required for marriage, testament, donation, and hypothec is commonly held as essential. What is prescribed for the other contracts is held as accidental, required for proof in the external forum. Cf. German Code, 125-129; Austrian, 883-886.

1054. IT IS ASKED. Whether contracts which are declared null by civil laws, when they lack ESSENTIAL formalities, are already invalid also in the forum of conscience before the sentence of a judge, or only rescindable?

Resp. There is controversy. Certain contracts are called invalid by some authors, concerning which the intention of the legislator, thus irritating, seems sufficiently declared from the context of the words.⁰⁷ Yet the more common and more probable opinion holds that they must be considered, not invalid by full right before the sentence of a judge, but only rescindable. The reason is that the irritating force of the law is not sufficiently established, as is clear from the various opinions of jurists.⁰⁸

With the controversy standing, favor must be given to the possessor until it is established otherwise by a judge.

Note. What we have said concerning defect of form commonly has force for other defects which by Positive Law irritate or weaken some contract licit and valid by its nature. Recall the things said n. 186 and 188. See also n. 1068, 1081, etc.