Chapter IV. The Matter of Contract

THE subject-matter of a contract must be something that is possible, for there can be no obligation to do what is impossible. Mere inability, however, to perform what one promised must not be confounded with impossibility. If the performance of a contract is contrary to the course of nature, it is void. No one can bind himself by contract to visit and report on the other side of the moon.

If at the time of concluding the contract the performance of it was impossible in fact, it is not void unless the parties contracted conditionally upon performance being possible in fact. The contract also remains valid if it was possible at the time of concluding it, but subsequently it becomes impossible without fault of either party, unless the parties intended that the contract should cease to be binding if performance became impossible, ‘This intention is presumed when the possibility of performance was known by the parties to depend upon the continued existence of some thing, condition, or state of things, which has ceased to exist, and when the performance becomes impossible by reason of the death or illness of one of the parties, in the case of an agreement relating to personal services to be rendered by that party.¹

When the performance of a contract is or becomes in part possible and in part impossible, it is a question of intention, depending in each case on usage and construction, whether the partial impossibility avoids or discharges the contract.

¹ Digest, n. 294 ff.

The matter of a contract must either exist or there must at least be some probability of its future existence when the contract is entered into, otherwise there is nothing of value and no right to transfer, and a necessary condition for a contract to come into existence is wanting.

The matter must be determinate or capable at least of being determined, otherwise the terms of the contract will be too vague, and no agreement of wills on the same matter is possible.

The matter must be something of which the contracting party has the disposal, or of which he will have the disposal when the contract has to be executed, for he cannot transfer to another what he cannot dispose of. When an object is already due to another in justice, its transfer to him cannot form the matter of a new contract, and so if a judge sells justice to a litigant he is bound to restore the bribe, to which he has no title... One may, however, enter into a contract with a third person to do what is already owing in justice to someone else, provided that both obtain their full rights. A doctor, for example, may charge next-door neighbours the full fee for a visit to each, though he has only the trouble and expense of one journey. Similarly, what is already due, not in justice but out of charity or some other virtue, may form the matter of contract.

There can be no obligation to do what is wrong, and so. the matter of a contract must be something which is lawful and honest. It is obvious that a contract to do what is forbidden by the moral law is invalid. If, however, such a contract has been executed and the crime committed by one of the parties, the question arises whether he has a right to the money or other compensation which was promised, and which, as we suppose, may be received without sin. There are two opinions about this question. Some theologians hold that no such right can exist, for the contract was invalid from the beginning and remains so; mere lapse of time cannot make it valid. On the other hand, many great authorities maintain that the actual doing of the sinful action in favour of one party to whom it is agreeable, and to whom it affords advantage of some sort, is the concluding of an innominate contract, and gives the party who did it a claim in justice to the compensation promised. Both views are probable, and so after the sin has been committed, and consideration for it has been paid, there will be no obligation to make restitution.

Sometimes the Church forbids a contract under pain of sin only, and then such contract will be unlawful but valid, as is a mixed marriage without the requisite dispensation; sometimes she forbids a contract and also invalidates it, as she does clandestine marriages.

There are some contracts which are illegal in English law, and yet they are valid in common estimation. This is the case with betting, and so if the contract is valid according to the law of nature, it will be obligatory in conscience, though unenforceable by English law. Other illegal contracts which are forbidden by the civil law of England are not thereby made invalid in conscience if they are valid by the law of nature. The law merely affects the external legality of the contract which it refuses to enforce. If, however, one who has entered into such a contract wishes for good reason to avoid it, and acts without fraud or injustice to the other party, he may take advantage of the law and rescind his contract.

This doctrine is in keeping with what has already been said in similar questions concerning the effect of civil law and with the views of modern theologians on the subject.