Question Five: On the Effect or Obligation of Contract

470. Contract effects a) in the debtor a twofold obligation:

1. directly, of executing the contract or furnishing that concerning which agreement was made;

2. indirectly, of compensating the damages following from non-execution of the pact;

b) in the creditor, a right corresponding to each obligation, namely, of exacting what is owed to him.

Furthermore each obligation, just as also the corresponding right in the other, can be 1) merely natural, which binds from the very nature of the contract but only in conscience, and gives no action in the external forum, as is the debt to be paid which cannot be juridically proved; 2) merely civil, which arises from civil law and produces an action in the civil forum, but does not oblige in conscience, as if someone is erroneously condemned to a fine and there is no way available for proving inculpability; 3) mixed, which obliges in each forum: and this can arise even from just civil law alone.

471. The direct effect is an obligation from commutative justice of giving, doing, or omitting something. Namely, a valid contract:

1. produces a true obligation in conscience, because the intention of obligating oneself is of the essence of contract, and this has itself after the manner of a particular law with respect to the contracting parties themselves (a. 1134);

2. produces an obligation which according to nature and extension depends upon the intention of the contracting parties, and therefore contracts are to be fulfilled in good faith (a. 1134), and oblige not only to those things which are formally expressed in them, but to those things which were in the explicit or implicit intention of the contracting parties, as is gathered from the words employed, from the character and dispositions of the persons, from the custom of places or civil laws, and to all things which, the nature of the contract being attended to, equity, law, or usage demand¹ (a. 1135);

¹ Rules of interpretation are handed down, a. 1156-1164.

3. does not have obligatory force except between the contracting parties themselves and those who hold their place, for example, heirs or mandators and creditors; hence they can profit or harm no one else (a. 1165-1166): for no one incurs an obligation or a benefit from the pact of another, unless he has consented;

4. obliges, if it is rescindable, until he who has the right petitions rescission.

But it becomes definitively firm a) if within the time defined beforehand by law he has not petitioned rescission; b) if he has renounced the right of petitioning rescission, while rescission is conceded only for his private good. For if it is also conceded because of the public good, he cannot renounce his right: thus a minor cannot renounce it when he would be induced to renounce his right by the other contracting party, because the public good demands that perverse men not have so easy a means of excluding imprudent young men from the benefit of rescission.

In species a) the obligation of giving embraces two things: the obligation of handing over the thing (a. 1136), and of preserving the thing and watching over its conservation as befits a good father of a family (a. 1137);

b) an obligation of doing not fulfilled imports compensation to be furnished for all damages coming from it to the other (a. 1142). But if one did not wish to do it and the other was able, this other can do it at the expense of the first, with compensation also petitioned for the delay employed (a. 1143-1144);

c) likewise an obligation concerning a thing not to be done: if, notwithstanding the contract, it has been done, the other can destroy the work at the expense of the first (a. 1143) and exact compensation for damages (a. 1145).

472. The indirect effect is the obligation of compensating damage coming from a contract not observed. But violation of a contract can occur from moral fault, from merely juridical fault, and from a fortuitous case. Now:

1. if there is fully deliberate moral fault, there is present an obligation of compensating the damage following from it, because there is damaging truly, efficaciously, and formally unjust;

2. if there is merely juridical fault, at least there is present the obligation of compensating after the sentence of a judge, or even at the petition of the injured party;

3. in a fortuitous case, no obligation is given of compensating damage (a. 1148). There is an exception a) if the debtor has taken fortuitous cases upon himself; b) if he is in fault as to why the thing was impeded by a fortuitous case; c) if he was culpably in delay, unless however the thing would likewise have perished with the creditor (a. 1302).

The debtor is constituted in culpable delay 1) at the moment when he does something which from the contract was not to be done; 2) when he does not do in useful time what was then to be done; 3) when he does not do it at the time determined by agreement, i.e., if he does it before the time fixed beforehand for beginning or after the time fixed beforehand for finishing; 4) when the law recognizes that delay is incurred by full right; 5) when the debtor has been juridically or legally summoned.

The quantity of compensation to be furnished is that which was determined in the agreement (a. 1152), unless it is modified by the judge (a. 1231-1232). But if none was determined, it will have to be estimated according to natural equity (a. 1149), and indeed so that, if deceit is absent, damages foreseen or which are presumed to have been foreseen are to be compensated (a. 1150); conversely, if there was deceit, foreseen damages and those which immediately follow from the contract not fulfilled are to be compensated (a. 1151). Yet if the matter of the contract is money to be paid, the compensation generally cannot exceed the rate of legal interest (a. 1153).

473. A conditioned contract in its obligations depends upon the fulfillment of the condition.

A. A contract entered into under a condition concerning the present or concerning the past obliges at once or not, according as the condition exists or does not exist on the part of the thing. And the same holds for a condition concerning a future thing that is certain and already known as such in a necessary cause: such a condition is judged not to have been added.

B. A contract entered into under a condition concerning an uncertain future only obliges or ceases to oblige after fulfillment of the condition. For condition is twofold (a. 1168): one is suspensive (vertragende), which suspends the assent to be furnished so that the existence of the obligation depends upon the fulfilled condition, for example, I buy the house if my absent wife consents; another is resolutory (ontbindende, opschorsende), which dissolves the assent given so that the cessation of the obligation depends upon the fulfillment of the condition, for example, I buy the house unless my wife contradicts; I sell the horse unless within a month I need it. Now:

1. A suspensive condition a) before the event suspends the principal obligation, but induces an obligation of awaiting the event of the thing; whence the debtor preserves dominion of the thing, and the creditor has only a conditioned right (a. 1182). b) Once the condition is fulfilled, the contract without new consent passes into an absolute one; indeed generally the obligation is judged to exist from the day the contract was entered into (a. 1179). c) When the condition is lacking, the contract (unless the debtor impeded the condition, a. 1178) is null; indeed it is judged to have been null from the beginning, and therefore if the thing had already been handed over, it would have to be restored with the fruits received (a. 1181-82).

A contract made under a merely potestative condition, whose fulfillment depends on the will of the debtor alone, is null from the beginning (a. 1174), for example, I will give you the book if I will.

2. A resolutory condition a) before the event does not suspend the obligation, but leaves the contract valid, so that the debtor here and now is held by the same obligations and the creditor has the same rights as if the contract were firm; whence the promised thing is to be handed over to the creditor. b) Once the condition is fulfilled, the contract is dissolved by that very fact without the sentence of a judge, so that the obligation is judged never to have existed; and therefore the thing returns to the prior owner in the same state as if the contract had never existed. c) When the condition is lacking, the contract becomes simply irrevocable, with the same obligations as if no condition had ever been appended (a. 1183).

In synallagmatic contracts a resolutory condition is always understood: unless the other has not stood by the promises; but its fulfillment does not dissolve the contract except by decree of a judge (a. 1184).

474. A modified or qualified contract in obligation depends upon the nature of the added clause. - The principal modal contracts are:

1. A contract to a day, whose execution, namely, is established as to be fulfilled at a certain time. The obligation from this contract, in the creditor, consists in this, that he cannot exact execution before the time fixed beforehand, although at once he has the right to the debt to be paid afterward. Yet in civil law there is exception: a) the case in which the debtor cedes his goods, whether by force or without force (C. C., a. 1188; C. Com., a. 450); b) the case in which by his own deed the debtor diminishes the securities given to the creditor for payment (a. 1188); - in the debtor: he cannot pay before the established time, whenever this time is constituted for the grace of the creditor; but otherwise if for the grace of the debtor (a. 1186). Generally, unless the contrary is proved, the term is judged determined in favor of the debtor (a. 1187).

2. A contract under a cause is that to which is added the reason because of which it is contracted. The reason is either final or impulsive, and concerning it those things must be said which we said concerning error about the motive of contract.

3. A contract under demonstration is that in which some sign is appended indicating the thing about which or the person with whom one contracts. This contract does not have force if error concerning the sign is turned into substantial error; otherwise it has force.

4. A contract under penalty is that in which, for strengthening the execution of the contract, a penalty to be paid is established if the contract lacks its effect. In this contract there are two obligations: one principal and absolute; the other secondary and in some way conditional. By the consent of all, a penal agreement is accessory to the principal; hence a) it does not subsist if the principal is null; but the principal is not destroyed by the addition of a penal clause (a. 1327); b) the creditor can urge the principal obligation while neglecting the penal one (a. 1228), but he cannot exact the principal and the penal at the same time, unless the penalty was added because of delay (a. 1229); c) if the debtor in delay has begun to execute the principal obligation, the penalty can be diminished by the judge (a. 1231).

5. A contract under disjunction is that by which someone is held to give, do, or omit one out of two or several things. By either obligation the contract is satisfied (a. 1189); - the choice is left to the debtor, unless it has expressly been conceded to the creditor.

475. An oath added to a contract does not change the obligation of the contract itself, but only extrinsically adds an obligation of religion. Hence:

1. If the contract is valid and firm, a promissory oath does not extend its obligation, but adds another obligation of religion, so that someone is now held to the same thing by a twofold title, of justice and at the same time of religion. Whence when the obligation of the contract ceases, the obligation of the oath also ceases, because the accessory follows the principal; unless the one swearing intended to oblige himself further.

2. If the contract is invalid by reason of matter illicit from natural or divine law, or from human law but directly on account of the common good, it does not become valid from the oath; nor is the promissory oath itself valid, because the accessory follows the principal, and because the one swearing cannot oblige himself to what is illicit, or harmful to the common good, as contrary to good morals. Thus sworn pacts concerning usury, concerning prostitution of the body, or a sworn matrimonial contract entered into with a diriment impediment are of no strength.

3. If a contract from human law is invalid or rescindable, but principally in favor of the private contracting party, the contract does not thereby become firm, but the promissory oath is valid and induces an obligation of religion. Whence a minor or wife who by oath promised not to rescind an otherwise just contract is held from religion not to rescind; if nevertheless he or she petitions rescission, it is valid, but he or she has sinned against religion, unless a dispensation from the oath had first been obtained.

4. If a contract is invalid from substantial error, neither does the contract itself become valid from the oath, nor is the promissory oath itself valid, because the accessory follows the principal and because the one swearing does not intend to swear concerning a thing about which he does not consent.

5. If a contract has been confirmed by an oath extorted from grave fear, the contract and oath are valid, because fear does not take away the voluntary, nor the human act. Hence if someone from fear of death swears that he will give a robber a sum of money, he is bound to give it; nevertheless he can petition a dispensation of the oath and rescission of the contract, or the punishment of the robber.

476. The obligation of contract ceases (a. 1234):

1. by payment of the debt or execution of that concerning which there had been an agreement;

2. by novation or substitution of a new debt, debtor, or creditor, by which the preceding debt is extinguished or the debtor is freed (a. 1271);

3. by condonation, by which the creditor remits the debt;

4. by legal compensation, which obtains place whenever both contracting parties owe to each other the same quantity of money or of fungible things;

5. by confusion, when the obligation of the debtor and the right of the creditor come together in the same person, as if the debtor becomes heir of the creditor;

6. by the perishing of the thing owed (a. 1302), without fault or delay of the debtor, or by fortuitous case;

7. by rescission or annulment of the contract, according as it is dissolved by the authority of a judge or declared invalid;

8. by the event of a resolutory condition (a. 1183);

9. by liberative prescription, as was said above (n. 233).