Question Four: On the Subject of Contract

467. Conditions required for contract on the part of the subject. - If only natural law is considered, all and only those who have the use of reason validly contract, whether physical persons, or also moral persons legitimately constituted: for for a valid contract on the part of the subject nothing else is required except deliberate and free consent by which a right can be transferred and an obligation undertaken. Whence those altogether incapable of contracting are: a) infants and children who have not yet attained the use of reason, but not minors under puberty who already enjoy sufficient use of reason; b) the perpetually insane; c) the drunken, the furious, and the perfectly hypnotized, at the time when they are not masters of their mind; - but less capable are all half-wits and all others who enjoy some, but not full, use of reason, for whom accordingly it is fitting that they not be able to contract without a curator who furnishes them counsel and assistance.

But by positive law those are capable of contracting who are naturally capable and are not declared incapable by law (a. 1123): human law can, for the common good, limit the right of private persons and to that end weaken contracts, so that spiritual or temporal damage may be excluded from persons specially to be protected, and provision may be made for the peace of families and the honesty of morals. Thus a) by ecclesiastical law certain persons can be incapable for certain contracts, as religious, concerning whom there is discussion in Canon Law; - b) by civil law, but variously for various nations, generally minors, interdicted persons, and, in many laws still, wives in certain cases determined by law are more or less incapable; and especially those to whom certain contracts are prohibited (a. 1124), just as also moral persons in whom the faculty of contracting is wont to be restricted.

468. Dispositions of positive law. - I. Minors either are not emancipated, and then they are under paternal power or under guardianship; or they are emancipated, and then they are under curatorship.

A. Minors not yet emancipated are under paternal power when they are deprived neither of legitimate father nor mother; those are under ordinary guardianship¹ who are deprived of at least one legitimate parent: ordinary guardianship is an office imposed by law, commanding or permitting, upon someone for gratuitously administering the person and goods of a minor.

¹ A twofold guardianship is distinguished in law: officious guardianship is an obligation spontaneously undertaken of educating a minor and administering his person and goods. This guardianship can exist while father and mother are living; nevertheless their consent is required (a. 361).

In French and Belgian law this guardianship is a) either legal, when it is deferred by the law itself: when one parent has died, guardianship is deferred by full right to the survivor (a. 390); yet the mother can renounce guardianship (a. 394), - which is not conceded to the father, - and if she enters a new matrimony, she loses guardianship, unless she convokes the family council, which will decree whether guardianship is to remain with her (a. 395); but if she keeps it, the husband is by the fact itself co-tutor (a. 396). If father and mother are lacking, and the last survivor has not designated a tutor, guardianship by full right is deferred to the nearest ascendant (a. 402); but if there are several of the same degree, one is to be designated by the family council (404).

b) Or testamentary, which is deferred by the surviving father or mother, legitimately enjoying paternal authority, to someone to be exercised after the death of the one deferring (a. 397), by testament or by an act before a notary (398 and 392).

c) Or dative or nominative, which is deferred to someone by the family council when legal or testamentary guardianship is lacking (a. 405 sq.): only one tutor can be named.

In every guardianship a substitute tutor must be designated (a. 420), whose office is to defend the minor, if there is need, against the administration of the tutor whenever the advantages of the tutor and of the pupil come into conflict.

Minors constituted under the power of father or tutor can do nothing in their own name, even with the consent of the tutor, but in all pacts they are subject to the father or tutor, who acts in their name and administers their goods as a good father of a family. - But the tutor 1) can accomplish acts of mere administration alone, for example, letting, sale of goods which the family council has decreed are to be sold, reception of revenues, payment of debts (450 sq.); 2) but acts of greater moment only with the concurrence of the family council acceding, for example, to accept succession even under the benefit of inventory (a. 461); 3) or of the tribunal, for example, to take a loan, or to constitute a mortgage, alienate immovables, carry out partition of goods or settlement (a. 457-458; 466-467); indeed 4) he is altogether prohibited from carrying out certain acts, for example, buying the goods of the pupil and accepting cession of a right or credit against his pupil (a. 450).

In certain laws, however, minors are permitted to receive goods without obligation (in Austrian, Swiss, German, English law); or to deposit their own monies in the public savings bank, or to be able to let their works in a certain manner.

B. Emancipated minors, who, exempt from the power of father or the authority of tutor, have the right of governing themselves and administering their goods, are constituted under curatorship.

They act in their own name, and can enter into certain contracts of mere administration (a. 481), but in matters of greater moment they need the assistance of the curator, the family council, or the judge, according to the various prescriptions of law (a. 482-484). - But if, with the consent of parents or of the family council, they assume the office of merchant, they are able alone to carry out all things which pertain to business, except the alienation of immovables (a. 487).

Now: 1) Acts entered into by minors with all prescribed legal forms are valid and firm.

2. Acts done without the common form required, i.e., without the assistance of tutor or curator, are valid, but rescindable, provided it is certain that the minor has been injured, but from the contract (a. 1305), not however from a fortuitous case (a. 1306) or from his delict or quasi-delict (a. 1310).

3. Acts done without the special formalities required, such as the consent of the family council or tribunal, are rescindable even independently of injury, but only at the will of the minor and of those having his cause.

But if after majority they have been confirmed, they cannot be rescinded (a. 1311). Ten years after majority, however, are conceded for petitioning rescission.²

² In Italy and Lusitania, five years are given.

In Italian, Austrian, Spanish, and German law, the minor alone, with certain exceptions indicated above, can contract no civil obligation; whence he can rescind contracts, even if he has not been injured.

In German law, they are also rescindable by the other contracting party, if he was ignorant of the defect of consent or minority (a. 108).

II. Interdicted persons. - Interdiction (ontzegging) is a sentence of a judge by which someone is declared incapable of ruling his own person and administering his goods. One is judicial, which is pronounced on account of the habitual state of weakness or insanity, even lucid intervals being supposed (a. 489), against an adult or even against a minor; another is legal, by which, during the punishment of those condemned to death or to forced labor, and sometimes to temporary detention or reclusion, they are deprived of the ability of contracting (a. 20-24 and 29 C. Poen. belg.).

Those judicially interdicted are constituted under a tutor. This guardianship is carried on in the same way as the guardianship of minors (a. 509). When the cause of interdiction ceases, the interdiction also ceases, yet not by full right but by the sentence of a judge with the same solemnities with which it was declared.

Now: 1) All contracts of interdicted persons are at least rescindable (a. 502), and a declaration of nullity can still be petitioned for ten years after the cessation of the interdiction (a. 1304), by the interdicted persons themselves or their heirs and those having their cause.

2. Contracts entered into before interdiction are valid, but rescindable by sentence of a judge if the cause of interdiction had already manifestly existed (a. 503).

3. Contracts of a demented person already dead cannot be rescinded, unless before his death interdiction had been petitioned, or dementia is gathered from the contract itself, or the matter concerns a purely gratuitous contract, namely donation or testament (a. 504 and 901).

Similar to interdicted persons are those who juridically are subjected to a judicial council. They are those who either because of a cause of the same kind as that which provokes interdiction, but not grave enough for pronouncing it (a. 499), or because of prodigality, are ruled in the administration of their goods by a judicially designated council (a. 513); in other words, they are half-wits or prodigals who cannot prudently manage their goods.

Contracts entered into before the said subjection cannot be rescinded, in any case. During the time of subjection, the capacity of contracting is restricted: under the authority of the judicial council fall lawsuits, settlements, taking a loan, receiving credits, alienating goods, pledging them and subjecting them to mortgage: namely, these contracts have no force without the assistance of the aforesaid judicial council; and if nevertheless they are entered into, they are rescindable; but other contracts have force.

III. Wives, without the consent of the husband, certainly cannot dispose of goods of which the husband has the usufruct or administration; but:

1. Generally they have perfect liberty of disposing of goods, if they have any, that are paraphernal or separate.

2. In any regime whatever, even of community of goods, a) if with the consent of the husband or tribunal they exercise separate public commerce, they can validly oblige themselves, without special consent of the husband, in those things which pertain to their commerce, so that, if there is community, the husband can now be obligated (a. 220; C. Com., a. 9-11); b) likewise wives can be obligated by reason of delict or quasi-delict (a. 216 and 1424); c) likewise by reason of domestic expenses for the sustenance of the family, because of the presumed consent of the husband, unless the contrary is certain; d) finally they can make a testament (a. 226).

3. Outside these cases, in French, Belgian, Dutch, Spanish, Lusitanian law, etc., wives labor under a certain general incapacity of contracting without the consent of the husband; whence without the special consent of the husband they cannot donate their goods inter vivos (by solemn donation), or pledge or subject them to mortgage, or alienate immovables under any regime whatever, or even accept donations or successions. - But when they are judicially separated from bed, by Belgian and French law they now have full liberty and marital authority is suspended.

Contracts entered into by a wife against the aforesaid dispositions are rescindable at the will of the husband, of the wife herself, and of their heirs, and indeed for ten years, even without injury; - unless however they have been confirmed by the wife, with the husband consenting (a. 225).

In Austrian, Swiss, Italian, German, and English law, there is now no special incapacity of wives for contracting; but if they dispose of goods of which the husband has administration or usufruct, the act can be invalid or weakened by reason of matter, because they dispose of a thing not their own, but it will not be weakened by reason of the subject, because the contracting party is incapable.

IV. Moral persons or societies which have obtained juridical capacity, especially institutes of public utility, often have a restricted capacity of contracting: for these are considered as minor persons, and therefore for acting they often need special permission of the competent authority; but other societies also cannot enter contracts except according to the prescriptions of law. Therefore, so that their acts can be valid or firm, at least in the external forum, they must be entered into according to the special formalities prescribed by law.

469. Moral principles concerning the obligation of contracts entered into by minors, interdicted persons, and wives.

I. Contracts of minors, interdicted persons, and wives, rescindable from privilege, can also be rescinded in conscience, even if they have promised the contrary, since that promise is invalid, opposed to the common good and to law; - provided they were entered into without fraud or another unjust means.

For since the law has been made for the common good unto their special protection, they can also use the benefit of the law; from another side those who contract with them ought to impute to themselves the damage inflicted, since they are warned by law not to make agreements with these except under legally defined conditions.

II. Those who in bad faith have used frauds or other unjust means in contracting cannot in conscience pursue rescission.

For the intention of the legislator is to protect the weak, not to patronize their frauds. Thus, for example, minors pretending (not simply affirming) that they are capable.

III. When the contract has been dissolved, those who contracted without fraud are bound to restore nothing, unless the thing still exists in itself or in an equivalent, so that they have been made richer.

Then they are bound not from a null contract, but from another title, namely by reason of the thing accepted. For the legislator does not intend that a minor or wife become richer, but that he or she be preserved unharmed.

IV. He who has deceived by fraud or has damaged by an unjust means, even when the contract has been dissolved, is bound to compensate the damage unjustly inflicted.

Then he is bound by another title besides the contract, namely by reason of unjust acceptance.

Hence the following resolutions are understood:

1° A minor, already of mature disposition, who falsely pretends to be of age and borrows money, ought to return it because he contracts fictitiously; likewise he ought to pay who for the sake of studies is away from the paternal home and procures those things which are necessary to him for honorable sustenance, because thus he acts by mandate of the father.

2° A wife who buys or borrows money to provide for the necessities of herself and her family ought to return it, because she is judged to act by mandate of the husband.

3° A minor son who has contracted many debts and squandered the money accepted is bound from justice to pay nothing, - nor are the parents bound to anything, - provided the son has employed no fraud toward the creditors, nor has been made richer from the debts.

4° A minor son who has borrowed 10,000 fr. from a very wealthy Jew, promising yearly interest of 50%, and besides swearing that he would never use the benefit of the law, has made a rescindable contract; and after he has obtained a legitimate dispensation from the oath, he can petition rescission from the judge.

5° A minor son buying something without the consent of father or law can rescind the contract, and can compel the seller to return the price received and to receive back the thing sold.

6° A wife, buying a house without the consent of husband and law, can counsel the husband that he rescind the purchase, although the seller suffers damage from this.

Nevertheless, if justice does not forbid acting thus, sometimes equity can demand something else, especially when the other contracting party was in good faith and is going to undergo a sufficiently great damage.