Case 1. Unlawful Contracts

A certain priest proposed the following cases to be solved:

I. Adalbert secretly introduced an enormous quantity of merchandise without paying the customs duties owed upon it, with the help of a certain Thomas, to whom he had already given fifty pounds for his labor and had promised to add fifty when the work was completed. Nevertheless, he did not stand by his promises, having heard that such a contract, inasmuch as it concerned unlawful matter, had been invalid from the beginning.

II. The same man had seduced a girl, seeking her consent to sin as a condition for contracting marriage afterward. But when he again did not stand by his promises, he was summoned by her to court and was punished with a fine of £1000 for breach of promise, which, lest he be compelled to pay it, he went away into another country. Hence it is asked:

1. What is the obligation of municipal law in England?

2. When our municipal law invalidates a contract, is the contract invalid in conscience?

3. Does a base contract bind, and in what manner?

4. Let the proposed cases be resolved.

1. What is the obligation of municipal law in England? Where English law applies or determines natural law, it binds the conscience under pain of sin. A merely positive law in England is probably penal and binds the conscience only to submit to the penalty if it is imposed by competent authority.¹

1 Manual of Moral Theology, vol. i, p. 125.

2. When our municipal law voids a contract, is the contract void in conscience?

Not at once and immediately; if it is valid by the law of nature, it remains valid unless some one moves to take advantage of the voiding law and set the contract aside.²

2 The same work, pp. 128, 478.

3. Does an immoral contract bind, and in what manner?

A contract to do something which is morally wrong is null and void in itself before the bad action agreed upon is done, as there can not be an obligation to do wrong. After the bad action has been done by one party, many theologians hold that the other party to the contract is bound to fulfil his promise, not by reason of the original contract, but because of a new contract, facio ut des, concluded in the very doing of the action. Others deny this, and hold that an immoral contract is and remains invalid.³

3 The same work, p. 488.

4. The cases. The contract which Albert made with Thomas was against positive law, but not necessarily immoral. It was therefore a valid contract and obligatory in conscience. Albert is therefore bound to pay the second fifty pounds to Thomas.

This same Albert seduced a woman by making her a promise of marriage. As he did not fulfil his promise the woman brought an action against him in court and obtained £1000 damages. Albert fled the country to avoid payment. Apart from the question whether the promise of marriage was valid or not, Albert did the woman an injury, for which he is bound to make compensation as far as possible. The court condemns him to pay £1000 damages for the injury, and he is bound in consequence to submit and to pay the sum. His flying from the country will not excuse him.