Article I. On the Notion and Division of Contracts

249. Notion. A contract is the consent of two or more persons in the same determination, manifested by a sensible sign, giving rise to an obligation in at least one of the contracting parties; or, briefly, according to Roman law: "it is the pact and consent of two or more persons in the same determination."¹

It is said, 1: of two or more persons in the same determination, to signify the subject of the contract, which cannot exist unless at least two persons consent in the same determination, i.e., something known and approved. Therefore acts of the intellect, i.e., the determination, and of the will, i.e., consent, are required for a contract.

It is said, 2: consent, because without true internal consent no contract obliging in the internal forum can arise, just as a son does not arise without a father. Consent is both the efficient and formal cause of a contract, as is especially worthy of note for the matrimonial contract.

It is said, 3: manifested by a sensible sign, because interior consent does not yet induce an obligation unless it has been manifested to the other contracting party by some sensible sign. Thus, at least, if there is question of a contract between men; for in contracts which are made between God and man, e.g., in a vow, which is a contract of promise, sensible manifestation is not required.

It is said, 4: giving rise to an obligation in at least one of the contracting parties. For a contract is: a) a promise given and accepted; but such a promise gives rise to an obligation, at least unilateral (indeed bilateral, if it was mutual or reciprocal); b) it is a private law which one voluntarily imposes upon himself and which is confirmed by both civil and natural law.²

There is a twofold source from which the right of contracting flows: 1. from natural law, because human society cannot suitably be preserved unless there is a free faculty of entering contracts; and 2. from human law, which establishes and governs diverse modes of contracting, so that all things may be arranged according to justice and equity.

¹ L. 1, § 2, D. de pactis 2, 14.

² Cf. Billuart, De contract. diss. 1, a. 1.

250. Divisions. Among the many divisions of contracts, the following seem more necessary for the confessor's use:

1. A formal or express contract and a virtual or tacit contract.

The former is that which is made by words, writings, and other signs formally manifesting the consent of the contracting party. The latter, however, is that which is had implicitly in the undertaking of some office or function; e.g., a physician exercising his art makes an implicit contract of doing all those things which his profession requires. A tacit contract is wont to be called a quasi-contract.

2. A named contract and an unnamed contract.

A named contract has a special name, such as purchase, lease, etc.; an unnamed contract, however, lacks its own name in law and is fourfold: I give that you may give; I give that you may do; I do that you may give; I do that you may do. Note, however, that what is given or returned in an unnamed contract ordinarily cannot be money; otherwise it would be a named contract. Therefore unnamed contracts are rather exchanges; e.g., I give you my book that you may give me your vote. Frequently they also induce an obligation of fittingness rather than of strict justice.

The older authors were accustomed to subdivide the named contract into that which is for the utility of both contracting parties and that which is for the utility of only one. Of the first kind there are nine: purchase, to which sale is opposed; leasing; hiring; census; exchange; emphyteusis; fief; insurance. - Contracts of the second kind are: loan for consumption, loan for use, precarium, pledge, mortgage, suretyship, deposit. - In our times a loan for consumption and a mortgage now tend to the utility of both contracting parties, since they are not wont to be granted without interest.

3. A unilateral contract and a bilateral or synallagmatic contract.

The former causes an obligation on the part of only one of the contracting parties, e.g., a contract of gratuitous promise; the latter produces a strict obligation for both contracting parties, e.g., purchase, lease, etc. - A bilateral contract is wont to be subdivided into commutative and aleatory. A commutative contract, which is also wont to be called a contract of certain outcome, is that in which something is to be given or done independently of a fortuitous event, e.g., purchase and sale. An aleatory contract³ is that in which something is promised or given only under a fortuitous event, e.g., in gaming, a wager, insurance.

4. A gratuitous contract and an onerous contract.⁴

A gratuitous contract yields to the utility of only one contracting party, e.g., donation; an onerous contract imposes a burden upon both contracting parties, e.g., sale, in which one is bound to deliver the merchandise and the other the price.

5. A principal contract and an accessory contract.

A principal contract does not depend upon another contract, e.g., a free sale; an accessory or subsidiary contract depends upon another contract and strengthens it, e.g., a mortgage.

6. A solemn contract and a simple contract.

A solemn contract observes all formalities prescribed by positive law, e.g., a testament made before a notary. The other observes only the conditions of natural law, e.g., an informal testament, but one clearly expressing the will of the testator.

7. A clothed contract and a naked contract.

A solemn contract is almost the same as a clothed contract, the execution of which is compelled by a civil judge because it was entered according to civil law. A simple contract, however, is the same as a naked contract, which indeed induces a natural obligation but is not recognized by positive law.

8. A pure (or absolute) contract and a conditional contract, according as no condition or modification, or some condition or modification, is appended to the contract.

9. A consensual, verbal, literal, and real contract.

This distinction was very celebrated in ancient Roman law and is also found in certain modern codes. A consensual contract is perfected in the manifestation of consent alone, whether this is done according to the formalities prescribed by positive law (a solemn contract) or without them (a simple contract). A verbal contract is the same as a stipulation and requires a determinate form of words. A literal contract requires for validity that it be drawn up in writing. Of this kind is a contract of espousals according to the new law. Finally, a real contract is that which is perfected not by consent alone but by the actual delivery of the thing, such as a loan for consumption, a pledge, or a deposit.

³ A contract of chance (Glücksvertrag).

⁴ In German: gratuitous and onerous contracts (unentgeltliche und entgeltliche Verträge).

251. Scholion. On the force of civil law in contracts. Since it is of the greatest interest to human society that all contracts be duly entered, the civil laws of all nations have established many things concerning the modes of contracts. Hence there arises the truly momentous question: how far do these statutes of civil law oblige in conscience? It is indeed certain that the power of invalidating, for a reasonable cause, acts of subjects which otherwise would not be invalid by natural law belongs to the civil authority. For a power of this kind is necessary for the effective direction of society. Hence authors also most commonly attribute to the civil ruler the power of establishing diriment impediments in the marriages of the non-baptized.⁵ But the invalidation of contracts valid by natural law can be made by civil law in a twofold manner: namely, 1. by directly affecting the acting person; or 2. by more directly affecting the act itself. In the former manner, the will of the agent is rendered ineffective either absolutely⁶ or relatively.⁷ Thus, e.g., according to German law, one who has been judicially declared such on account of defect of mind,⁸ or one who is civilly dead, is absolutely incapable of any contract. According to French law, however, a minor who has not completed sixteen years is absolutely incapable of disposing of his goods by donation or testament.⁹ - In the latter manner, numerous civil statutes concerning prescribed formalities directly affect the act of the contract itself, e.g., in the sale of immovable things, in making a testament, etc. But whether these prescribed formalities so affect the act that without them it is invalid even in conscience is an arduous question which cannot be resolved by a general rule and which in individual cases depends upon the mind of the legislator. Moreover, this mind is often doubtful. For since legislators have not only Catholic subjects but also unbelievers who care little about obligations of the internal forum, they generally abstract from obligation in conscience.

Nevertheless, it seems better if even then an obligation in conscience is attributed to civil laws, unless the legislator expressly determines that the act is merely rescindable or merely unrecognized in the public forum. The reason is that the common good cannot be sufficiently consulted, nor the indemnity of the weak provided for, when no obligation in conscience is attributed to laws invalidating a contract except after the sentence of a judge. For then those laws would profit the wicked and harm the good; for the good, who hear the voice of conscience, would not use them against others, while the wicked, who attend only to the external forum, would use them whenever they favored themselves. - Furthermore, from such a divorce between the internal and external forum, occasion would be furnished for many sins and quarrels, because some would claim goods for themselves according to civil law, while others would compensate themselves secretly according to natural law. The so-called informal testament, which according to natural law is valid but according to civil law is invalid,¹⁰ furnishes a classic example of nearly insoluble difficulties. Finally, there is also the fact that not only great doubts but even dire persecutions can arise for the confessor if, in this matter, he denies to civil law every obligation in conscience before the sentence of a judge. Since these things are so, the confessor acts more prudently and more truly if in the matter of contracts he inculcates observance of the civil laws, and all the more so since the Code of Canon Law, c. 1529, expressly decrees: "What civil law establishes in a territory concerning contracts both in general and in particular, whether named or unnamed, and concerning payments, shall be observed in canon law in ecclesiastical matters with the same effects, unless they are contrary to divine law or otherwise provided by canon law."

⁵ Below, in the tract on matrimony, III, n. 651.

⁶ Legally incapable (geschäftsunfähig).

⁷ Limited in contractual capacity (geschäftsbeschränkt).

⁸ German Civil Code § 104.

⁹ French Civil Code, art. 903.

¹⁰ Cf. below, n. 277.