§ 1. On Suitable Matter

252. 1. Since a contract is a mode of acquiring or transferring dominion, as was said above, whatever falls under dominion can be suitable matter for a contract. But since dominion over some thing or action can be limited, to that extent the faculty of contracting is also limited.¹¹ The conditions required that some thing or action be suitable matter for a contract are enumerated as follows: the matter or action must be possible, existing, proper to the contracting party, estimable by a price, honorable, and lawful:

a) possible, both physically and morally. For no one can oblige himself to the impossible. Hence if the thing is physically impossible, the contract is null (as happens, e.g., if someone sold a determinate horse which suddenly dies from being struck by lightning). But if the thing is morally impossible, i.e., exceedingly difficult, the contract is not valid unless it was expressly stipulated that the thing was to be furnished in any event whatsoever. - If the matter of the contract is divisible and cannot be furnished in its entirety, the obligation of furnishing the possible part remains, unless it is evident from the mind of the contracting parties that they wished to oblige themselves either to the whole or to nothing. One who by his own fault brings it about that the matter of the contract is rendered impossible, e.g., an architect who through culpable carelessness does not finish a building at the appointed time, is bound to repair the damage thence arising for the other contracting party.

b) existing in reality or at least in hope. The reason is that a right cannot be transferred in a thing which does not exist and is not hoped ever to exist. In stock-exchange speculations, great injustices are sometimes committed when certain things are sold as existing which nevertheless exist either not at all or only in hope.¹²

c) proper to the contracting party. For no one can transfer to another a right which he himself in no way has. Hence a sale which a thief makes of another's thing unjustly taken is invalid. But if someone has a thing of his own in hope, he can sell this hope, unless positive laws invalidate such a contract. - When something is already owed to another from justice, a second contract cannot be made concerning the same thing with the same person. Thus, e.g., a judge cannot enter a contract to receive something for pronouncing a just sentence. For this obligation already exists from the office undertaken; therefore he cannot dispose of it freely; but if he nevertheless disposes of it, he acts concerning a thing which is no longer his. I say, however: with the same person, because a second contract can be made with a third person to whom nothing is owed from justice. E.g., someone hired by Peter to carry a message to Rome can exact money from Paul in order to conduct some business of Paul's there, because, even if Peter has paid all the expenses of the journey and the salary owed, Paul nevertheless thereby acquires no right that Peter's agent should transact some business for him. - But if something is owed from charity or from another virtue, a contract made concerning this thing is valid but illicit; e.g., to show the right way to one who is lost is an act of charity, but if someone exacts money for this service (without labor being furnished), he sins against justice.¹³

d) estimable by a price. A contract cannot be made concerning a thing which is not estimable by a temporal price. This indeed especially has place in onerous contracts, and: 1. in spiritual things, which cannot be sold for a temporal price (it is lawful, however, to exchange one spiritual thing for another; e.g., to say a rosary for another under an agreement that the other hear Mass); 2. in contracts concerning a base thing; for since a base act cannot be estimated by a price, all contracts concerning an illicit thing are invalid from the beginning.

¹¹ Cf. above, n. 15 ff., on the limited dominion of wives, children of a family, etc.

¹² E.g., forward transactions (Termingeschäfte).

¹³ Cf. Billuart, De contract. diss. 1, a. 9.

253. e) honorable and lawful. For no one can oblige himself to anything evil, nor demand that an illicit thing be done. Hence all authors teach that a contract concerning a base thing, before the evil work has been committed, produces no obligation, and therefore neither contracting party is bound to fulfill the stipulated work; indeed, both are bound to withdraw from the contract entered. But a great controversy exists among theologians as to whether, after the evil work has been committed, the other contracting party is bound to pay the stipulated price.¹⁴ It is certain that prostitutes can retain, and indeed exact, their shameful gain after fornication has been committed. Thus St. Thomas expressly teaches with the most common opinion,¹⁵ and it is also evident from the response of the Sacred Penitentiary of 22 April 1822.

Question: "A prostitute who obtained a large sum of money by granting the use of her body to various lovers has very recently been converted. Is she bound to restore the entire price of her crimes, or only a part, or to expend it on pious works? And if she is bound to one or the other, is it from strict justice or only from counsel? N.B. This prostitute, if restitution were made, would not be reduced to extreme poverty."

The response was: "The penitent woman is not to be compelled, but is to be exhorted, according to the judgment of a prudent confessor, to expend the price of prostitution upon pious uses."

But for other illicit actions several authors, e.g., Comitolus,¹⁶ Beusch,¹⁷ Collet,¹⁸ Gousset,¹⁹ Carrière,²⁰ and Tanquerey,²¹ deny the validity of a base contract even after the evil work has been committed. For, they say, that contract was invalid before fulfillment of the work. Therefore, even with the work completed, it remains invalid, because of Rule of Law 18: "That which from the beginning does not subsist in law is not made firm by the passage of time."

But the more common and far more probable opinion, which St. Thomas²² and St. Bonaventure, St. Antoninus, St. Alphonsus,²³ and very many ancient and modern authors certainly hold, teaches: "A contract under the condition of a base work, whether repugnant to justice or to another virtue, whether to be punished by the laws or not, once the condition has been fulfilled, obliges by natural law." The reason seems to be that in those illicit acts there is a twofold constituent: the one material, namely the physical act; the other formal, namely the culpability of that act. The second constituent is not estimable by a price and consequently can never be matter for a contract. The first constituent, however, is estimable by a price, and when it has in fact been performed, the other contracting party is bound to pay the promised price.²⁴ Hence one who promises marriage to a girl under the condition of carnal intercourse is bound, once this base condition has been fulfilled, to marry her. One who promises a sum of money to a malefactor for betraying his country,²⁵ is bound, once the betrayal has been committed, to pay the promised money. One who, from hatred of religion, promised wages so that servile works might be performed for him on Sunday must give these wages once the servile works have been performed.

Sometimes, however, base contracts of this kind are by positive laws declared absolutely invalid, both before and after the deed, e.g., a simoniacal agreement. Then they certainly do not oblige.²⁶

Because the opinion affirming the complete nullity of those contracts is extrinsically probable, and because modern civil laws²⁷ admit a civil action neither for obtaining nor for restoring a base price, in practice the possessor is to be favored,²⁸ and consequently, if someone refuses to pay the promised price for a base thing furnished, sacramental absolution cannot be denied to him.²⁹

Cases Resolved. 1. A merchant promised the editor of a very celebrated newspaper 1,000 francs if by artful lies he would recommend some business in his newspaper; but afterwards he refuses to pay this promised sum. The condition of the possessor is better in a base contract, and consequently the merchant cannot be strictly obliged, but only admonished, to give the promised money.

2. A young man promised a girl 100 francs if she would permit intercourse. Once this has been done, he refuses to give the 100 francs. He cannot be compelled in the forum of conscience to pay the promised money. The reason is the same: the condition of the possessor is better in a base contract. But if the girl afterwards secretly carried away the promised 100 francs, neither can she be compelled to restitution for the same reason: the condition of the possessor is better in a base contract.³⁰

¹⁴ Ferdinand Maurer, S.J., treats this controversy learnedly and profoundly in Zeitschrift für katholische Theologie, vols. 33 and 34 (1909 and 1910).

¹⁵ S. theol. 2, 2, q. 32, a. 7; q. 62, a. 5 ad 2. Even Concina himself (De restit. diss. 2 in comm., c. 11) concedes this, but falsely thinks that the sole title by which prostitutes can demand and retain the price is civil law, which punishes fornicators as by a fine, so that they pay the price of fornication.

¹⁶ Respons. mor. l. 3, q. 5. Concina, l.c., explains well the reasons alleged by him.

¹⁷ Tract. canonico-legalis de pact. et contract. c. 4, sect. 3, n. 271ff. (Migne, Curs. theol. vol. XVI, col. 427ff.).

¹⁸ De restit. c. 3, a. 1, sect. 4.

¹⁹ Theol. mor. n. 753.

²⁰ De contract. nn. 331-338.

²¹ De iust. n. 648.

²² S. theol. 2, 2, q. 87, a. 2 ad 2; Sent. 4, dist. 15, q. 2, a. 4, q. 2.

²³ Theol. mor. l. 3, n. 712.

²⁴ The response of the Holy Office of 14 January 1846 (Collect. de Prop. Fide n. 1003) is also to be noted: "A certain Bonze, ready to renounce the errors of pagan superstition and give his name to the Holy Catholic Church, asks that he be permitted to retain what he had formerly received in the pagan office which he exercised and what he had acquired in the practice of medicine. - Response: He is not to be disturbed, provided no certain injustice intervened from another source.... Likewise, what the Bonze acquired for himself from pagans in his priestly office, although it flowed from a superstitious source, nevertheless seems to have come to him legitimately, as being proper to the pagan nation and, with its consent, attributed to its priests in place of an honorarium."

²⁵ Commonly called espionage (Spionage).

²⁶ Cf. below, n. 565; German Civil Code §§ 138 and 817.

²⁷ German Civil Code § 138; Swiss Code of Obligations, arts. 20 and 66.

²⁸ Roman law also establishes thus: "If the cause both of the giver and of the receiver is base, the possessor is to be preferred, and therefore recovery ceases, even though payment was made by stipulation." L. 8, D. 12, 5; German Civil Code § 817; Swiss Code of Obligations, art. 66.

²⁹ Billuart treats this controversy excellently, De contract. diss. 1, a. 8.

³⁰ Cf. Génicot, Cas. consc. I, de contract. in gen. c. 3.