§ 2. On Invalidating Law

Preliminary Note. Not only human laws, but also the natural and positive-divine law can be invalidating laws. Thus, for example, diriment impediments of marriage which are of natural right (force, consanguinity of the direct line in the first degree, etc.) or of positive-divine right (the bond) are true invalidating laws. Since, however, these laws produce their invalidating effect immediately and always, without any man being able to dispense, they do not need special explanation. Therefore discussion will be about only human invalidating laws.

213. Notion. A human invalidating law is called that which establishes that some act or contract (indeed valid from its own nature) is invalid or at least rescindable on account of some determined defect.¹²⁰

Therefore an invalidating law differs from a prohibiting law. For a prohibiting law renders the opposed acts illicit, while an invalidating law renders such acts juridically invalid or at least to be invalidated. Thus at least in itself, for in practice several invalidating laws are at the same time prohibiting. - The reason why the legislator sometimes makes invalidating laws is the common good. For the liberty of subjects would be too much restricted if the legislator wished to make no laws except those truly preceptive and directly obliging in conscience. And therefore he commands some acts, prohibits others, and only invalidates others. Nevertheless such laws are very effective, since they render the opposed acts altogether invalid. Invalidating laws are chiefly concerned with diverse contracts, for example, with sponsal, matrimonial contracts, with religious profession, with testaments, alienation of ecclesiastical goods, ecclesiastical benefices, etc.

An invalidating law can annul an act in two ways: 1. by the law itself, when, namely, the act is rendered null from the beginning; thus, for example, all diriment impediments of marriage are invalidating laws by the law itself; 2. after the sentence of a judge, if, namely, the act has force until it is rescinded by the judge. In the first case the act is called and is invalid; but in the second case the act is indeed valid, but rescindable.

Sometimes the law is not merely invalidating, but at the same time also penal, that is, it invalidates some act as a penalty for some delict committed; thus, for example, a beneficiary not reciting the Divine Office does not acquire the fruits of the benefice, and if he has acquired them, the act of acquisition is invalid and the beneficiary is held to restore the fruits received. - In practice it is not always easy to discern whether some invalidating law is at the same time, and indeed principally, penal or not, as the controversy concerning the impediment of crime shows. For several theologians before the new Code thought that this impediment was principally a penal law and therefore was not incurred by the ignorant. On the contrary, canonists commonly and rightly taught that this impediment was principally an invalidating law and therefore the ignorant are not excused;¹²¹ which doctrine is now certain.

An invalidating law indeed is akin to an inhabilitating law, but it is not altogether the same. For an inhabilitating law directly regards the person, whom it renders incapable of carrying out certain acts; thus, for example, a woman is by divine right incapable of receiving orders; a religious after solemn profession is altogether incapable of any act of ownership. But an invalidating law directly regards the act (which it annuls), and only indirectly the acting person. Some authors,¹²² however, think that an inhabilitating law is part of an invalidating law.

¹²⁰ Cf. Cod. iur. can. c. 11.

¹²¹ Cf. below the treatise on marriage III, n. 860.

¹²² Thus Bouquillon, Theol. mor. fund. n. 148.

214. Effect of an invalidating law in the external forum. A merely invalidating law always and everywhere invalidates an act placed against it, without any regard being had to good intention, or fear, or ignorance¹²³ in the agent,¹²⁴ or to epikeia.¹²⁵ Therefore, for example, all diriment impediments (even the impediment of crime) really do dirimently impede marriage, even if someone has contracted marriage with good intention or with ignorance of the impediment.¹²⁶ If an invalidating law annuls an act by the law itself, the act from the beginning has no legal effect in the external forum; but if the invalidating law declares the act only rescindable, the act is held valid from the beginning and the effect of annulment does not begin except after the declaration of the competent authority, as has already been said.

¹²³ Cod. iur. can. c. 16, § 1.

¹²⁴ Suarez (De leg. l. 5, c. 22, n. 7 sqq.) calls this opinion indubitable.

¹²⁵ Cf. Suarez, l. c., c. 23 and D'Annibale, Summul. I, 216.

¹²⁶ Therefore an invalidating law does not cease even in a case of very grave private inconvenience. Thus the far truer opinion. But an invalidating law certainly ceases if otherwise a very grave common inconvenience would arise.

215. Effect of an invalidating law in the internal forum. 1. Merely invalidating civil laws do not seem to cause a direct obligation in the internal forum, unless something else is certainly established from the matter or from the words of the law. The reason is that although the civil legislator certainly has the power of making invalidating laws even for the forum of conscience, nevertheless ordinarily he is rightly presumed not to impose such an obligation in conscience, since he is able to obtain the end of his law by civil invalidation alone (and not moral invalidation).¹²⁷ But after a sentence has been given according to invalidating civil laws, there also arises a moral invalidation, that is, an obligation in conscience; and this not only from obedience or legal justice, but sometimes also from true commutative justice, namely if there is question of the transfer of ownership.¹²⁸ Hence, for example, if someone has received certain goods from an inform testament, which is invalid before a civil judge because of defect of the required form, he can retain them until the civil judge has determined the contrary. Conversely, an heir who knows that some testament is invalid because of defect of legal form can reject it and not observe its provisions. Only testaments made for pious causes are excepted, which more probably are considered in the internal forum as valid, although they lack the legal forms of civil law. Cf. below II, n. 277 and Act. Ap. Sed. XX 196.

2. Invalidating ecclesiastical laws, if they establish only that an act is rescindable, leave that act valid in the internal forum until it is invalidated by legitimate authority; but if they establish that the act is invalid by the fact itself, they render this act invalid in both forums and also annul its obligation in the internal forum. The reason is that the words of a law must be interpreted as they sound, unless otherwise some absurdity or irrational inconvenience would arise. But invalidating ecclesiastical laws simply and without any restriction annul certain acts. Therefore those acts are to be considered invalid in both forums, namely in the internal and external forum, unless from this there would follow some certain thing contrary to reason. Moreover in no ecclesiastical law is such an inconvenience found. Therefore, as a general rule, it can rightly and deservedly be held: An ecclesiastical law which invalidates some act by the law itself takes away from it every value and obligation in both the internal and the external forum. Thus the more common and truer opinion. Hence, for example, espousals which have not been entered into according to the form prescribed by law are wholly invalid and therefore produce no obligation either in the external forum or in the internal forum (unless, however, from the dissolution of the espousals unjust material damage has been caused).¹²⁹

Note. "Laws, even invalidating and inhabilitating laws, do not bind in a doubt of law; but in a doubt of fact the Ordinary can dispense in them, provided there is question of laws in which the Roman Pontiff is wont to dispense." Thus the Code of Canon Law c. 15. Wherefore a bishop can dispense, for example, in all doubtful impediments of marriage, if the Pope is wont to dispense.

¹²⁷ Cf. van Gestel, De iust. et lege civili LXV and LXXXVI.

¹²⁸ Cf. Soto, De iust. l. 4, q. 5, a. 3; Sylvius, Com. in II-II, q. 66, a. 2, quaer. 5, concl. 6.

¹²⁹ Cf. Cod. iur. can. c. 1017, § 1. I have treated specially of this case in Linzer Theol. prakt. Quartalschr. 1914, 140-145.