§ 2. On Invalidating Law.

166. Notion. 1. An invalidating law is said to be that which renders invalid acts which, considered in themselves by the law of nature alone, would be valid.

a. Invalidations are chiefly concerned with contracts, marriage, vows, oaths, religious profession, elections, and benefices.

b. The reason for this law is that frauds, dangers, and other inconveniences may be warded off from society, and in this way the common good may be promoted.

c. From these things it is clear that an invalidating law of itself is not penal; but because the invalidation of an act falls to the burden of the agent, it can be imposed as a punishment for a delict.

2. A twofold invalidation must be distinguished:

a. Moral invalidation, by which an act is deprived of the natural value which it has by the law of nature in the forum of conscience, and civil invalidation, by which an act is deprived only of the positive value which it has from civil law in the external forum. An act civilly invalid produces no right which the political power acknowledges and protects; but in the forum of conscience it produces its right just as if the invalidation were not present.

b. Moral invalidation is either lata, if the effect is produced by the law itself, or ferenda, if the effect is produced through the sentence of a judge. An act of this kind has and retains its natural value unless it is invalidated through a sentence.

167. Division. Invalidating laws are divided: a. Into laws which render an act invalid by the fact itself, and into laws which make an act rescindable through the sentence of a judge.

b. Into laws which prohibit and at the same time invalidate an act, such as diriment impediments of marriage, and into laws which only invalidate an act and do not prohibit it, such as the formalities of wills.

The former oblige in conscience to omitting the act; but the latter of themselves do not oblige to omitting the act, but only to undergoing the effects of the invalidation either already before or at least after the sentence of the judge. Therefore it is not lawful, e.g., to enter marriage with a diriment impediment, but of itself it is lawful to make a will without legal form.

c. Into merely invalidating laws, which are established only for the common good, which postulates that certain acts be invalid, as the law invalidating marriages which are celebrated without the form having been observed; and into penal invalidating laws, which are established as a punishment of the agent, as the impediment of crime, which diriments marriage. The former suppose no fault in the agent.

168. Principles. 1. All concede that both ecclesiastical and civil legislators have the power of issuing invalidating laws, because this is useful, and sometimes even necessary, for the common good. Therefore they can establish invalidating laws, not indeed at will, but as the common good requires.

Nor should it be said that this doctrine supposes something that is false, namely that positive law prevails over natural law: for the law of nature itself requires that social power be furnished with this faculty for the common good. Wherefore natural laws of this kind, e.g. concerning the value of donations, are not absolute but conditioned, namely unless they are invalidated by positive law.

2. Ecclesiastical invalidating laws render the act itself invalid naturally and in conscience; but civil invalidating laws before the sentence of a judge of themselves render the act invalid only civilly and in the external forum, unless something else is certainly established either from the object or from the words of the law.

For where the end intended by the legislator can be obtained even if he does not touch the forum of conscience, he is judged to employ only external means for the end. And this indeed must be conceded the more readily because modern legislators rather often do not acknowledge obligation of conscience properly so called. But after the sentence of a judge the act must be held invalid even naturally and in conscience, because the sentence is founded upon the presumption of common danger.

3. A purely invalidating law obtains its effect even if it is invincibly unknown or the act is placed from grave fear: for it is required by the common good that the law should not cease on account of invincible ignorance or grave fear of the agent; therefore a marriage contracted in good faith with an invalidating impediment is null. A penal invalidating law, which joins the invalidation of the act as a punishment for the violated law, does not invalidate the act where ignorance or grave fear excuses from fault: for when fault, which is the cause of punishment, is lacking, the effect or punishment also is lacking.

If fault is committed, but the punishment of invalidation is unknown, some with Suarez¹ judge that the invalidation remains, because ignorance which does not excuse from fault also does not excuse from the punishment added to the fault, even if it is unknown; but others with Sanchez² teach that the invalidation does not remain: for delinquents indeed incur ordinary punishments proportioned to the delict, even if they are ignorant of them, but they do not incur extraordinary or exorbitant punishments if they are ignorant of them; but the invalidation of an act is an extraordinary and exorbitant punishment. Therefore they judge that crimes which otherwise diriment marriage do not induce a diriment impediment if the punishment of invalidation is unknown. This opinion indeed is probable.

4. An invalidating law indeed ceases in a case of common impossibility or of most grave common inconvenience, but it is not certainly established that it ceases also in a case of private impossibility or of most grave private inconvenience.³

¹ Cf. De legibus l. 5. c. 22. n. 4.

² Cf. Opus morale in praecepta decal. l. 1. c. 16. n. 15.

³ Cf. Ballerini-Palmieri I. n. 318 ss.