Morals of the Church
Library › Prümmer, Manuale Theologiae Moralis › Volume II › Treatise XI. On The Virtue Of Justice And The Opposed Vices › Section I. On Right And On The Virtue Of Justice Itself › Question IV. On Contracts › Chapter I. On Contracts in General › Article II. On the Requisites for a Contract

Section — Prümmer, Manuale Theologiae Moralis

§ 2. On Persons Capable of Contracting

254.

254. Principle. Every man can contract, provided that: a) he possesses the use of reason; and b) he is not specially prohibited by positive law.

The reason for the first is that no one can impose an obligation upon himself unless he truly knows it. Hence, by natural law itself, the following cannot contract: a) infants who have not yet attained the use of reason. Ordinarily, before the seventh year infants are considered to lack the perfect use of reason. After the first seven years, sufficient use of reason is presumed, and consequently a contract then entered is indeed valid by natural law, but is often declared rescindable by positive law; b) the perpetually insane; c) the drunken, lunatics, etc., during the time in which they lack the use of reason.

The reason for the second is that positive laws (whether civil or ecclesiastical), for the common good, can licitly limit the freedom of contracting. And thus this has been done by all systems of law with respect to minors, wives, interdicted persons, those civilly dead, etc. The statutes of several civil codes were already sufficiently explained above when there was discussion of the subject of dominion.31 The general rule is: Minors, wives, and all those limited in the faculty of contracting can rescind a contract entered; but those with whom they contracted cannot do the same, or, as Roman law establishes: "Age comes to the aid of minors in losses and does not harm them in things prosperously conducted."32

But if it is asked whether these statutes have force also in conscience, so that contracts entered can safely be rescinded if civil law so permits, the general response is affirmative. The reason is that, by a just general statute, civil law can validly and licitly grant, on account of the common good, the rescission of some contract. But if some suffer damage through such a rescission, they must impute this to themselves, because they knew or ought to have known that they could not validly contract with minors, wives, etc.

Minors, wives, and other interdicted persons must, however, repair damages arising from rescission of a contract: 1. if they used fraud, pretending that they were free to contract, for then they are unjust damagers or possessors in bad faith; 2. if they were made richer thereby.

Cases Resolved. The following cases are easily resolved from what has been said:

  1. A minor son contracted many debts and squandered the money received. If the civil laws establish that a minor cannot enter any valid contract, neither the parents nor the son himself are bound to pay the debts contracted, provided that: a) the son employed no fraud toward the creditors; b) he was not made richer from the debts contracted.33

  2. A minor son borrowed 1,000 francs from a very wealthy Jew, promising interest of 50 percent annually, and moreover swearing that he would faithfully execute the contract and would never make use of the benefit of civil law. This contract is not firm, and after a legitimate dispensation from the oath has been obtained, it can be rescinded with the aid of a civil judge.34

  3. A minor son (without the consent of his father and of civil law) bought something. The contract can be rescinded by the minor, but not by the seller, who can be compelled to return the price received and take back the thing sold. The reason is that one who (even in good faith) contracted with a minor cannot prevent the rescission of such a contract.35

  4. A wife (without the consent of her husband and of civil law) bought a house. Afterwards she advises her husband to rescind the purchase, even though the seller suffers damage thereby. The wife can use the benefit of civil law and does not injure justice by the rescission of the contract,36 unless she was made richer by the contract itself.

31 Cf. nn. 18ff. and 29ff.

32 Cf. § 9, Inst. 3, 19; L. 44, Dig. 4, 4.

33 Cf. St. Alphonsus, Theol. mor. l. 3, n. 757. Cf. also German Civil Code §§ 107-113; Austrian Civil Code § 865; Italian Civil Code art. 1303; Swiss Civil Code art. 17ff.

34 Cf. Génicot, l.c., tr. 9, c. 5; Billuart, l.c., a. 5.

35 Cf. Noldin, De praeceptis n. 529.

36 Cf. Lehmkuhl, Cas. consc. I, n. 296ff.

Capacity of the parties