528. Which persons are capable. 1. By natural law all who possess the use of reason are capable of contracting: for for a valid contract on the part of the contracting party nothing else is required except that he be able to show sufficient consent, that is, consent which is a perfectly human act.

Therefore of themselves incapable are those who lack the use of reason, as infants and the perpetually insane, the drunk and the furious at the time at which they are incapable of a perfectly human act. Besides, the half-witted, half-drunk, half-asleep, half-delirious are incapable, because they do not have perfect use of reason. But minors are not incapable, nor are those who labor under monomania, provided they use sound reason concerning the matter about which they contract.

2. By positive law all are capable of contracting who by natural law can contract validly, unless they are declared incapable by law. Now generally those are declared incapable of contracting by law who do not have the free administration of their goods; but in particular minors, interdicted persons, namely those who by the sentence of a judge are declared incapable of exercising civil acts, and wives. What these persons can and cannot do as to contracts must be taken from the civil code.¹

a. Positive law, while it weakens the contracts of certain persons, limits and restricts the right innate to each person from nature, and this justly on account of the common good, both lest less experienced persons be deceived and suffer damage, and that peace of families may be provided for. Wherefore the disposition of law which is founded in common danger has force, even if in a particular case no inconvenience follows.

b. By this disposition of law, in modern codes the contract of a person legally incapable is generally not constituted invalid unless it is made void by a sentence of a judge, but only infirm, namely one which at the discretion of the incapable person, but not of the other contracting party, can be rescinded within the time determined by law. Wherefore, when the condition prescribed by law accedes, a contract of this kind becomes altogether firm; thus the contract of a minor son or wife, when the consent of the father or husband accedes, or a contract which is not rescinded in the time determined by law, becomes firm.

c. For confirming contracts of lesser moment the presumed consent of the father or tutor suffices. Therefore those contracts are firm by which minors give, buy, sell, or spend small things in play.

¹ C.A. Sections 865, 270. From C.A. Section 1237 ss., a wife can freely enter contracts concerning her own goods. C.G. Section 106 ss.

529. Whether minors (interdicted persons, wives) can in conscience use the benefit of civil law. The benefit conceded by civil law to minors, etc., is twofold: a. that their contracts, if they lack the condition required by law, are rescindable; b. that minors, if the contract is rescinded, are not bound to restore the thing accepted unless it still exists either in itself or in the equivalent.¹

If they acted without fraud, they can use each benefit, because both the firmness of the contract and the obligation of restoring (if the thing no longer exists) have been removed by law for the common good. Indeed, lest the law be rendered altogether void, they can use this benefit even if they gave a special promise of paying in every hypothesis or of renouncing the benefit of the law.

alpha. Therefore if a minor without the consent of the father buys something, the seller, before the merchandise has been handed over, cannot compel him to give the price; yet if the minor wishes to stand by the contract, he can compel the seller to hand over the merchandise for the established price: for the seller must preserve the contract, but the minor buyer can rescind it. If the thing has been handed over, the seller can be compelled to receive the thing and return the price. But if the minor uselessly consumed the purchased thing while the price had not yet been paid, the seller cannot demand payment of the price.

beta. A minor who, without the consent of the father or curator, received money as a loan for consumption and consumed it for useless purposes, once the rescission of the contract has been made, is not obligated to restitution, even if afterward, having become of age, he could restore. For those who contract with minors, even in good faith, must impute to themselves the damage if they suffer any from this. But he is bound to restitution if he spent the money on necessary and useful purposes, because then he has become richer by it.²

gamma. If a minor seeks before a judge the rescission of a contract which by law he can rescind, charity requires that the other party rescind the contract without waiting for the sentence of a judge, lest the minor be forced to make useless expenses.

Article Fourth. On the Consent of Contracting Parties

Concerning the consent of contracting parties it must be set forth: a. what the qualities of valid consent are; b. what the vices of consent are.

¹ C.A. Section 865; C.G. Section 108. Other codes declare these contracts rescindable not simply, but only when the minor has been injured, as C. Gall. and C. Angl.

² Cf. Reuter III, n. 151; St. Alphonsus, n. 757.