Article I. On the Matter of Contract

I say. The matter of a contract generally is all those things which can fall under the dominion of man and concerning which the contracting parties have free administration. Wherefore it must enjoy certain conditions, namely, it must be: 1st, possible both physically and morally, because no one can be obliged to the impossible; 2nd, existing either in reality or at least in a founded hope, otherwise it would be estimable at no price; 3rd, honorable, or prohibited by no law at least as to its substance, because a right of violating some law cannot be given or received; 4th, proper to the contracting party, because no one can transfer to another a right which he himself does not have; 5th, certain and determined, whether in the individual or in quantity and quality, otherwise the contract would be vain and illusory.

You Will Resolve. - 1st. Someone can receive a price from Titius for an action which from justice he already owes to Peter, if, without injury to Peter's right, that action can also be useful to Titius. The reason is that such an action, although it is already owed to another, is nevertheless proper to him who places it and truly estimable by price.

2nd. If the matter is possible only in part, the contract is valid, provided that the thing is not only divisible in itself, but also has been contracted concerning divisibly.

3rd. A merely spiritual thing can certainly be the matter of a gratuitous contract, because nothing from any law stands in the way, and it is confirmed by the practice of pious faithful; but not of an onerous contract, unless the thing is spiritual on both sides, as is clear from those things which have been said concerning simony. Indeed, even if the thing is spiritual on both sides, the case of a special prohibition made by the Church must always be excepted, as happens, for example, in exchanges of benefices carried out by private authority.

Question 1. What is to be said concerning the validity of a contract under a base condition, for example, I give you one hundred dollars if you kill Titius, if you defame Caius, if you give access to your body, etc.?

Resp. Before the fulfillment of a condition of this sort, the contract is certainly null according to the opinion of all; and the reason is that dominion cannot be transferred or received in that which is base. But if the base condition has already been fulfilled on one side, there is no little controversy. Many theologians indeed hold that that contract is then valid, because although a base action, insofar as it is illicit, is worthy of no price, nevertheless insofar as it is laborious, ignominious, or dangerous to the agent, or useful to another, it is estimable by price. But this reason would already prove that that contract is valid even before fulfillment of the condition, which no one admits. Wherefore there are not lacking other theologians and jurists who, even when the condition has been fulfilled, deny the validity of that contract, relying upon rule 18 of law in 6: "That which by law does not subsist from the beginning is not made firm by the passage of time." - Our Kent is in harmony with these, when he says: "The consideration must not only be valuable, but it must be a lawful consideration, and not repugnant to law or sound policy or good morals. Ex turpi contractu actio non oritur: and no person, even so far back as the feudal ages, was permitted by law to stipulate for iniquity. The reports in every period of the English jurisprudence, and our American reports equally abound with cases of contracts held illegal on account of the illegality of the consideration; and they contain striking illustrations of the general rule, that contracts are illegal when founded on a consideration, contra bonos mores or against the principles of sound policy or founded in fraud or in contravention of the positive provisions of some statute law. If the contract grows immediately out of, or is connected with an illegal or immoral act, a court of justice will not enforce it." - Cf. Kent, Comment. vol. 2, part 5, lect. 39, n. 466.

But if it is asked no longer about the validity of that contract, but whether he who promised one hundred dollars under the aforesaid conditions is held to spend them, still many theologians, according to the more common opinion, respond affirmatively; because, they say, in that base pact another unnamed contract is implicitly contained - I give that you may do, or I do that you may give - whose nature requires that always, as often as one contracting party has furnished his part, the other is held to fulfill his own, if he can do so licitly. - But indeed there are not lacking other theologians who, not improbably, deny the existence of this unnamed contract in each particular case, although they admit its force if its existence were established. Wherefore, practically speaking, the confessor, if someone has not yet paid the agreed price to a prostitute or hired killer and refuses to pay, cannot oblige him to pay under penalty of denying absolution.

From this same solution it is gathered that, strictly speaking, the confessor cannot oblige the violator of some girl to marry her from the fact that marriage was promised to her under the condition of committing fornication. Indeed St. Alphonsus, who adheres to the more common opinion concerning the validity of a contract after fulfillment of a base condition, nevertheless when it is a question of the obligation of marrying a violated girl, admits many exceptions, and exempts from such a burden if discords and quarrels are foreseen between the future spouses. - Cf. St. Alphonsus, nn. 642 and following. - Carrière, vol. I, nn. 331 and following.

Question 2. Whether an obligation of restoring arises from acceptance on account of a base cause?

Resp. Although the acceptance is not unjust toward him who gives, it can be base and illicit from other causes. Thus prostitutes are not held, after the sin has been committed, to restore money previously received, and they can receive it anew if it had not already been given. Namely, that action, in that part by which it is useful and delightful, is worthy to obtain a price. "For the justice and value of a contract it suffices," says Lugo, "that there be a counter-suffering, or that the seller deprive himself of some good for that price, which good he could retain without injustice to the buyer; therefore whether licitly or illicitly he deprives himself, nevertheless he always suffers, for the favor of the buyer, some damage worthy of a price, which he ought not suffer." - Disp. 18, n. 48. - And thus a wife can retain money received for adultery, although she can neither licitly nor justly sell her body. Nevertheless, in itself it is clear that money given before the use of the body and accepted from an explicit or implicit pact for the use of the body cannot be retained if the use was not granted; for there is no title for retaining it. But it must be said otherwise if it was given for capturing benevolence. - Cf. above.

Thus also theologians commonly teach that, with attention given to the law of nature, and unless the laws themselves render such persons incapable of giving or receiving, that which has been received for an evil work, once the evil work has now been done, ought not be restored.

Nevertheless I cannot retain the price which I receive from Peter for a thing already owed to Peter from justice. For this would be the same as if I were selling Peter his own thing.

With the law of nature considered, he who receives something on account of a good work, or an omission owed from some virtue other than justice, is not held from a debt of justice to restoring. Because there is no root of obligation: not from the thing received, because one able to transfer dominion transferred it; not from unjust acceptance, since no injury intervened. Nevertheless, it can be that from the debt of another virtue it would sometimes have to be rendered, and sometimes not. Let the matter be illustrated by an example. Titius vowed to hand over to the Church a chasuble of the value of 50 dollars. But Titius does not wish to fulfill the vow; wherefore Linus gives him 25 dollars that he may satisfy the vow. In this case religion obliges Titius to give a chasuble of so great a value; nevertheless, in fact, after accepting the 25 dollars, he does not give the chasuble completely, but partly gives and partly sells; and therefore, with the price retained, he has not yet satisfied the vow completely; and hence, just as he was held from religion before to give the chasuble completely so that he might satisfy the vow, so from the same religion he is held to restore the price, because he has not yet fully satisfied the vow. But on the contrary, if you ought to hear Mass, acceptance of a price does not cause you not truly to hear Mass, as you are held by precept. Therefore the general rule is thus posited by Lugo, disp. 18, n. 70: "when acceptance of a price causes that a work owed from some other virtue is not placed according to its substance or according to the due qualities, there will be an obligation by force of the same virtue of restoring the price, so that the work may be done such as it was owed from that virtue. But when acceptance of the price does not impede this, there will not be such an obligation of restoring the price."