Question Three: On the Object or Matter of Contract

464. Conditions required for contract on the part of matter. - The matter of contract generally is the object of a right, i.e., everything, whether a thing, or an action, or an omission (a. 1126), into which a right in a thing or a right to a thing can be acquired, or everything which can be given, done, or omitted by man; in species the matter must be:

1. Possible, for no one can oblige himself to the impossible, for example, to migrating to the moon or to avoiding all fortuitous things; whence:

a) If the matter is impossible relatively to the contracting parties, the contract is null;

b) if it is partly possible, partly impossible, and the matter is indivisible in itself or in the intention of the contracting parties, the contract is null; conversely, if it is divisible in itself and in the intention of the contracting parties, it is valid as to the possible part;

c) if the matter is morally impossible, the contract of itself has force, but no one is judged to will to oblige himself, unless he has said so explicitly;

d) if from an unforeseen circumstance it becomes impossible for the contracting party, the contract remains valid if he is able to furnish the same thing through another without grave inconvenience;

e) if the contracting party by his own fault has rendered it impossible, he is bound to repair the damage inflicted upon the other contracting party; otherwise, if he was altogether inculpable.

2. Existing in reality or in hope, i.e., at least certainly or probably going to exist in the future, for example, fruits not yet mature in a field, gain hoped for from such commerce. For the hope of a future good, or the thing hoped for, is estimable by price (a. 1130).

Conversely, a contract cannot bear upon something which neither is nor will be, which is nothing; for dominion cannot be transferred nor a right acquired into a thing which does not exist and never will exist. Thus a contract concerning a burned thing is invalid (a. 1601).

But if the matter exists according to one part and according to another does not exist, it is in the judgment of the buyer either to rescind the contract or to stand by the contract while requiring a diminution for the destroyed part; this is to be understood if the destroyed part is notable (a. 1636-38).

3° In some way estimable by price, i.e., useful for human uses and furnishing value. Hence a) it must not be of no price: for a thing of no price cannot be the object of a benefit or a burden, and therefore a contract concerning it, whether gratuitous or onerous, is null; b) nor may it exceed every temporal price, or be a merely spiritual thing, in those contracts in which commutation is made with a thing estimable by a temporal price: for this is simony; but nothing prevents donating a spiritual thing or commuting it with another spiritual thing, unless however it is prohibited by the Church.

But a temporal thing can be annexed to a spiritual thing, whether antecedently, when the temporal thing is prior in the order of nature, for example, a church, chalice, sacred ornaments; or concomitantly, when one cannot exist without the other, either per se, as the labor to be undergone in the celebration of Mass or the administration of a sacrament, or per accidens, as greater labor because of a later hour or a longer journey; or consequently, when the spiritual thing is prior in the order of nature, for example, an ecclesiastical benefice. Now concerning the first thing a contract has force, provided the price is not increased because of the spiritual thing; concerning the third it does not have force, because the temporal thing necessarily depends upon the spiritual; concerning the second it does not have force if the temporal thing is annexed per se, it has force if only per accidens.

4° Placed in commerce (a. 1128), i.e., subject to alienation and acquisition.

Whence there are excluded a) things which cannot be occupied, as air, the ocean, etc.; b) things which pertain to public dominion, as public roads, public offices and duties.

5° Determined at least according to species, and at least determinable according to quantity; otherwise the contract would be uncertain and illusory (a. 1129).

Quantity is sometimes defined mathematically, for example, if ten pounds of coffee are sold; sometimes morally, for example, if wheat necessary for the sustenance of someone's family for a whole year must be furnished; indeed it can be uncertain here and now, provided it is determinable, for example, the whole heap of stones or wood which is present.

6° Proper to the contracting party: for no one can transfer to another a right which he himself in no way has, neither in reality nor in hope, neither in the present nor in the future; hence a sale or legacy concerning another's thing is null (a. 1599 and 1021). But future things which are held in hope can be the object of a contract (a. 1130); nevertheless positive laws generally invalidate a contract concerning an inheritance which is expected from a person still surviving, even one entered into with his consent, namely to impede the death of this person from being desired or procured¹ (a. 1130 and 1600).

¹ An exception, however, is made for a matrimonial contract: for a contract can be made concerning future succession in favor of the spouse or of children who are born (a. 1082). And by contract it can be determined whether future successions will constitute part of the community (a. 1526).

Hence a) generally each can promise only what must be furnished by himself, but not what must be furnished by a third party (a. 1119);

b) nevertheless he can constitute himself as a kind of pledge of another's deed, and promise not only that he will take care of it, but that he will bring it about that the third party actually consent; yet so that, if the third party does not consent, he renders the other contracting party unharmed (a. 1120);

c) he can stipulate unto the grace or favor of another (a. 1121).

7° Not yet owed to another from strict justice (a. 1021 and 1599): otherwise it is not his own. Thus a judge cannot enter a contract for receiving something for a just sentence which he is bound to render from office, since he obliges himself to nothing new.

Conversely a) a contract concerning a thing owed from another virtue, for example, charity or gratitude, although it can be illicit, is nevertheless valid, because thus someone obliges himself to something new, namely to doing it from a stricter obligation. Whence a physician who from charity must furnish care gratis to some poor man can validly agree with him concerning a fee to be received;

b) indeed nothing prevents a contract concerning a thing owed by you to another from justice from being made again with a third party to whom nothing is owed from justice. Thus one hired by Peter to carry a message to Rome can again for the same journey require a salary from Paul, whose business he will accomplish at the same time.

8° Honorable and licit, i.e., prohibited by no law, even apart from the contract, so that it is honorable in itself: for no one can oblige himself to something evil, nor demand that an illicit thing be done.

Yet the contract has force if the matter is dishonorable only because of the intention of the contracting party (for example, the purchase of a sword for killing), or because of the prohibition of the contract (for example, matrimony entered into against betrothals): for then the matter is not dishonorable in itself.

465. Concerning a base contract it is asked: whether after fulfillment of the base work it becomes valid, so that the other party now must furnish his own part? - It is answered: three things must be well distinguished:

1. an illicit contract, for example, a prodigal donation;

2. a contract under an illicit condition, for example, I will give you 1,000 fr. if you kill my enemy;

3. a contract from an illicit cause or concerning an illicit thing, for example, I give you 1,000 fr. that you may kill; or if it is entered into mutually: I promise you 1,000 fr. for killing, I promise you killing for 1,000 fr.

Now:

The first contract is valid, because it is not concerning an illicit thing.

The second contract is concerning a licit thing to be furnished, namely concerning payment of the price, but it is entered into under a suspensive condition; and therefore before the fulfillment of the condition, namely of the evil work, it is invalid; after the fulfillment of the evil work, it is valid. This in no way is special to such a contract, but common to every contract entered into under a suspensive condition. Sometimes, however, by civil law it is declared null (a. 1172), but in the sense that it is rescindable, and therefore it is not null before the sentence of a judge; but in gratuitous contracts such a condition is judged not to have been added (a. 900).

The third contract is invalid, even before the sentence of a judge, as one entered into concerning an illicit thing and from a base cause alone (a. 1131). Whence a) before the evil work has been perpetrated, neither is bound to fulfill the contract, but each is bound to withdraw from it. And if the price for the base work has already been paid, it will have to be restored, because a title for keeping it is lacking. For a base work cannot be the object of an obligation, and before the work is fulfilled there is no title in the one receiving the price except an obligation undertaken of positing the base work.

b) But if the contract is concerning an evil work to be furnished by each party, for example, I promise adultery for killing, - I promise homicide for adultery, no obligation will ever be able to be present, even if one has perpetrated his work, because there will never be any obligation to do evil.

c) But if the contract is concerning an evil work to be furnished for a temporal price, certain moderns judge that even after the evil work has been perpetrated there is no obligation of paying the price, under the pretext that by the course of time a contract is not made firm which, as invalid, does not exist from the beginning; and besides that the common good demands the perfect nullity of contracts concerning an illicit thing. - Yet with the great doctors² it seems that one must altogether affirm: after the evil work has been perpetrated, of itself there is an obligation of paying the price, which the other can exact and retain.

² St. Thomas II-II, q. 32, a. 7; q. 62, a. 5, ad 2; q. 87, a. 2, ad 2; IV Sent., d. 15, q. 2, a. 4, qc. 2; St. Bonaventure; St. Antoninus; St. Alphonsus, Th. M. III, n. 712.

The reason is 1. because in the third immoral and null contract by which someone promises a base thing, there is always implicitly included another unnamed contract, namely the second: concerning an honorable thing under a base condition: do ut facias, which obtains force after the work has followed, as was shown above. In reality, although that work is illicit and to be omitted, nevertheless from the estimation of the contracting parties it brings danger and burden, which are estimable by price, and the estimation of this sort of danger is not intrinsically evil and can be the matter of an unnamed contract: do ut facias. When then the other has undergone the danger, the price must be paid for the danger or burden, unless perhaps: a) the price is altogether prodigal, which would have to be reduced; or b) by some positive law the executor is deprived of the price of the crime; but such a disposition, as an infliction of penalty, has no force except after the sentence of a judge.

And therefore the will of one remains to remunerate the other if he furnishes the work; whence once the work has been furnished, by that very fact the contract, or consent of wills, is perfected. And therefore the obligation does not arise from a null contract; but on the occasion of this, from another valid contract.

2. From the inconveniences which are derived from the opposite opinion: otherwise, for example, a young man who deflowered a girl under promise of matrimony would not be obliged to take her in matrimony, nor would the price have to be paid for an illicit work of a Sunday; which no one admits. - They respond: the young man is bound from the damage, because the girl cannot enter another favorable marriage. - This indeed is a just title, but more seems to be required; otherwise the rich would offer money and thus the girl could marry in a favorable marriage. Hence even if such a title of damage to be compensated by money does not exist, nevertheless justice always obliges one to marry because of the promise, and so public estimation judges.

Therefore the object is licit: payment of an indifferent thing; - the cause is the deed, not as base but as estimable by price; - the consequences are not evil, for, the delict having already been done, it can no longer be said that the law favors it; but if hope of benefit should move one to perpetrate crime, hope of paying nothing would move one to persuade another to a delict and to deceive simple persons; and thus favor would be granted to him who is more guilty.³

³ Vermeersch, Quaestiones de Iustitia, n. 294.

466. Practical corollaries. - From this the following are deduced:

1. He who has completed a base work can exact and retain the agreed price, as is besides certain for prostitutes from the response of the Sacred Penitentiary, 22 Apr. 1822; and for a superstitious office from the response of the Holy Office, 14 Jan. 1846.

2. Nevertheless the other can approach a judge and petition for annulment of the obligation, other damages being compensated if they were present; although it seems less honorable. Besides, he can easily be restrained from this by the danger of infamy.

3. He who without any pact has received gifts which, the circumstances considered, are given to this end, that the donee be induced to an evil work, is not bound to restore them, although it is to be counseled; but from strict justice he can keep them, because they were given absolutely without obligation.