Article I. Preliminary Notions

324. Concerning an invalidating law and a prohibiting law. 1. An invalidating or infirming law is a law which wholly or partly takes away the natural efficacy of a juridical act. Strictly speaking, therefore, it regards an act to which nothing is lacking of itself for commuting rights, and impedes its power.

A merely prohibiting law, on the contrary, does not touch the juridical effect of the act, but renders the agents guilty: thus, for example, laws by which merely prohibiting impediments to marriage are established.

An invalidating law is not necessarily prohibiting: he who, in making a donation or a testament, omits solemnities necessary by law violates no prohibition.

The sanction of invalidation was formerly called perfect; the sanction of punishment alone, less than perfect; and that of invalidation and punishment, more than perfect.

2. Three modes of invalidating can be distinguished. For a law can render an act invalid: a) after the sentence of a judge, not by full right; b) by full right, but civilly only; c) by full right, even naturally.

The scope of these three modes will be more apparent from the five rationales of disapproving a juridical act which Laymann ascribes to positive law:

α) A law merely does not assist an act, or does not grant an action in the external forum: articles 1965-1967 of the French Code deny this to debts from gaming.

β) It merely prohibits an act, but takes away no juridical effect. In this manner marriages between a heretical and a Catholic party are disapproved.

γ) It renders the act rescindable by the sentence of a judge. Thus, in favor of wards, and so forth, articles 1124, 1125 of the French Code establish; thus also article 1117 rendered contracts from fear rescindable.

δ) It renders an act civilly null, holding it as unperformed, so that after the sentence of a judge—which should rather be called a declaration and is not always required—it is rendered infirm as if nothing had been done from the beginning. Examples under French civil law are, for example, a marriage celebrated only before a minister of the Church.

ε) Or it even takes away, before every sentence or declaration, the natural obligation, or the obligation of the forum of conscience. Thus, under canon law, a marriage contrary to the Tridentine form where the decree Tametsi is in force.

325. Concerning nullity and natural obligation. 1. From what has been said it follows that the words a null act, which of themselves are clear and definite, on account of varying usage and impropriety of speech,¹ are not free from ambiguity, so that they signify almost equally acts which are infirm in some manner. Yet the word rescindable of itself designates abolition by the sentence of a magistrate. Cf. above, no. 288.

¹ This, for example, is rightly objected to the French Code, so that certain acts are called null in the law which are merely rescindable, even civilly. Hence no small difficulty in explaining the law itself. Cf. arts. 887, 892, 1110, 1111, 1113, 1117, 1304, 1338 (Baudry, work cited, vol. 2, no. 1152).

To remove this obscurity, some jurists introduced a distinction between a nonexistent act and a null act, which they equate with a rescindable act. Rev. Fr. Van Gestel, work cited, no. 73, rightly and deservedly rejects this manner of speaking, since by it violence is done to the genuine meaning of the words, by which null means the same as nonexistent; but an act merely subject to rescission is not meanwhile null. Nevertheless, the distinction pleases some theologians.

But so that every confusion might be more fully avoided, the Most Illustrious Bishop Waffelaert, vol. 1, no. 351, distinguished: a rescindable act; a null act, which even civilly bears a certain appearance of a valid act, so that it gives occasion to a controversy which must be decided by the sentence of a judge; and an act nonexistent by positive law, which does not exist even in appearance in the civil forum. The latter he judges plainly invalid also in the forum of conscience, while, in our opinion, it can happen under our law that the whole matter is circumscribed to the external forum.

2. The words natural obligation are also received in a twofold manner. For sometimes they designate an obligation arisen from an agreement naturally valid, to which the civil law indeed does not attach an action, yet does not deny all civil effects, since it holds the voluntary payment itself ratified (arts. 1235, 1967, French Code); while sometimes they designate a moral obligation, or an obligation of the internal forum, which the law in no manner attends to, although it does not positively abolish it. Concerning these things, cf. Aubry and Rau, Droit civil français [French Civil Law], vol. 4, § 297, especially notes 2, 3, 5.