Article II. Conclusion and Supplements to the Doctrine

Even over contracts, and generally over juridical acts, which have force by natural law, the authority of the civil power is per se so great that by just laws it is able to render them fully invalid, so that, before any sentence of a judge, they produce no obligation even in the internal forum.

Nevertheless, these laws are of strict interpretation.

Therefore, concerning present-day positive law, it must be answered that, as a rule, acts which are pronounced null are not deprived of their natural force before the sentence of a judge.

326. I. State of the Question. 1. THE FORCE AND INTENTION OF THE THESIS. By the present position we ask what the civil law can effect upon the essence or efficacy of a contract—or of a juridical act in general—and what it has in fact done today. Concerning the former point we posit two things: that civil law can per se take away from these acts every force which they would otherwise obtain in conscience; but that it does not exercise this force unless the will of the legislator is clearly established. As regards the other point, we affirm, as at least probable, that as a rule the conscience is not bound by the invalidations of present-day law before the sentence of a judge.

2. OPINIONS. The first position, if there are any who deny it—and they are few in number, as Carrière, On Contracts, no. 88, relates—every excellent theologian and jurist affirms, either tacitly or expressly, to be indubitable.

The second position also, although it is often not examined expressly, is proposed by Suárez as plainly certain and is easily derived from the principles for interpreting laws. Cf. Suárez, On Laws, bk. 5, chap. 32, no. 7.

Which acts, however, are thus rendered invalid by positive law always was, and remains, a difficult and disputed question. There was indeed less doubt and controversy concerning canon law, as Suárez, work cited, no. 6, declares; but there was plainly uncertainty concerning the force of Roman laws. Cf. the various opinions in Molina, tract 2, disp. 81; C. de Lugo, vol. 2, disp. 22, nos. 249-251, where, concerning contracts and testaments, he recounts four opinions which he judges probable.

Nor is the mind of the French Civil Code more established among present-day jurists. Thus Laurent wrote in Principes de droit civil [Principles of Civil Law], vol. 15, no. 458: “Uncertainty is in some manner traditional”; and Baudry, Précis de droit civil [Summary of Civil Law], vol. 2, no. 1146: “This matter is important and complicated; its natural difficulty is further increased by the disorder in which the legislative provisions are presented.” Cf. Van Gestel, no. 71.

It is no wonder, therefore, if the matter is not agreed upon even among theologians who have attended to more recent laws, and if different men will different acts or contracts to be absolutely null by the authority of civil law. This very doubt seemed to us a not infirm argument for the third position.

In the third position we accede to the opinion of the Rev. Fathers Lehmkuhl and Van Gestel; nor will the Most Illustrious Bishop Waffelaert contradict the general proposition, and still less the distinguished Marrès.

Nevertheless, since Carrière and several others posit this norm—“nullities which were introduced for the rationale of the common good obtain in the forum of conscience”—we have them as adversaries in this part, as we shall show in the corollary, no. 330.

3. THE TERMS ARE EXPLAINED.

Even over contracts, and generally over juridical acts. Juridical acts are human acts which tend toward the acquisition of a certain right or its renunciation. Cf. Van Gestel, no. 63.

Which have force by natural law. Hence the question is not:

a) Concerning acts which do not possess those things which the law of nature requires so that they can be valid. For it would be superfluous to dispute concerning a contract which, for example, lacks essential consent;

b) Concerning acts whose faculty exists only through positive law, nor concerning effects which proceed from positive law alone. For it is evident that, for example, the faculty of voting is not possessed except under the conditions established by human law. It is no less evident that an act for which the law of nature alone has given the faculty is not clothed with civil efficacy; but, if it has any efficacy, this is natural only. Thus, for example, possession which lacks something required by civil law will not avail for usucaption.

So great per se: we say this because it can happen that the matter is withdrawn from civil authority by a superior power. For example, the contract of marriage between Christians, on account of its sacramental character, is withdrawn from the civil power as regards the bond.

Is the authority of the civil power. You would say the same concerning the ecclesiastical power as regards the contracts which it governs.

By just laws. For the common conditions of a law are plainly required. Therefore, this power is not to be exercised at pleasure, but the rationale of the common good is to be considered.

Is able to render them fully invalid, so that, before any sentence of a judge, they produce no obligation even in the internal forum. By these words we at once affirm and describe the fullest abolition of an act.

Nevertheless, these laws are of strict interpretation. Therefore, they are not to be extended to cases not clearly comprehended; and, where the mind of the legislator is doubtful, the lesser abolition is rather to be admitted.

Therefore, concerning present-day positive law: we mean the civil law of many nations, especially England, Belgium, France, Germany, Holland, and Italy.

It must be answered that acts which are pronounced null: and null in such a way that they are held civilly as unperformed.

It is clear, moreover, that the controversy does not concern acts which positive law clearly declares rescindable, but those which it pronounces null: for example, a donation completed by a non-authentic act (arts. 931, 932, French Code), or a testament which has not been drawn up in the legitimate form (art. 1001). You should also carefully distinguish solemnities required as substantial from those demanded merely for the sake of proof. Thus, under our law, unless you have at hand a writing by which you can at least prove the matter semi-fully, you cannot prove by other means, in the external forum, a contract whose object exceeds 150 francs in value. Yet by this law the validity of the agreement itself is not touched in the least. Cf. French Code, arts. 1341-1348, 1351.

As a rule: that is, unless the common good clearly demands that the effect of invalidation be most full, or unless the legislator must otherwise be charged with absurdity. Cf. Van Gestel, no. 76 and the twenty-sixth conclusion of the recapitulation.

Are not deprived of their natural force before the sentence of a judge. This sentence, where the matter gives occasion to some controversy, will be civilly declaratory of infirmity and at the same time will take away every natural obligation. But if it is too evident that nothing was civilly done, no other sentence can be conceived except one by which the judge commands the restitution of those things which were taken away or possessed without civil right.

II. Proof.

327. A. OF THE FIRST PART. Concerning the power of civil authority.

First Argument. The Council of Trent, by the decree Tametsi, rendered clandestine marriage—that is, a contract without a pastor and witnesses—fully invalid.

Therefore. Civil authority can render contracts fully invalid.

To the antecedent. For doubt can be raised neither concerning the mind of the Church, on account of the clear law and the unanimous consent of theologians, nor concerning the efficacy of the provision, since, on account of the prerogative of infallibility, whatever the Church does by universal law it shows by that very fact that it can do.

The consequence is proved. The Church could not do this because the rationale of a sacrament is inherent in marriage; for from that fact, rather, difficulties against this provision were sought in the Council of Trent itself. Rather, it could do so because the contract itself, legitimately celebrated, has been elevated to the dignity of a sacrament, and the Church can render the consent of the parties inefficacious for contracting. But. The Church has this authority not insofar as it is a spiritual power, but because, as the supreme power of a perfect society, it has the right and office of ordering, in the matter subject to it, the acts and rights of the citizens to the common good of that society. But this rationale can be transferred wholly, with the limits of this province observed, to the civil power.¹ Therefore. The inference from the Tridentine law to the efficacy of the power is rightly made.

¹ We suppose these limits to be observed throughout the present argumentation.

Second, direct argument. In order that the public power may order the rights and goods of the citizens to the common good, it has those same rights and goods indirectly subject to itself, insofar as their nature permits. Hence, by an efficacious sanction, it can decree concerning them what the common utility appears to demand.

But. 1. It is sometimes in the interest of the commonwealth that every obligation, even natural, by which citizens would otherwise be bound from juridical acts be taken away; and 2. the nature of things is not repugnant to this abolition.

Therefore. The faculty of rendering acts fully infirm belongs to the public authority.

To the major. For just as the faculty of choosing means suited to their proper end belongs to citizens, so also to the state. And because the private good is subject to the common good, the latter, other things being equal, ought to prevail. This rationale especially obtains where rights in external goods are in question. Cf. nos. 232, 2 and 234.

The minor is proved. 1. It is sometimes in the interest of the commonwealth. For this abolition, when opportunely sanctioned, a) is a suitable punishment of certain crimes; b) prevents dispositions which of themselves are directly harmful to the common good; c) fosters particular justice and equity among the citizens. But. In the first two cases, the common good directly, and in the third it mediately demands that the public power be able to take away the natural obligation. Therefore.

2. The nature of things is not repugnant to this abolition. For, while rendering juridical acts infirm, the law touches rights insofar as they are acquired, lost, and transferred by the consent of the contracting parties or by the will of the disposing person; that is, insofar as they have by no means been withdrawn from the providence and care of men.

To the major. a) To use examples, is not the impediment of crime a most suitable punishment for adultery and the murder of a spouse, to the commission of which the hope and promise of marriage gave an inducement? b) Unless the faculty of rendering infirm were most full, the parties could by private agreements take away rights which, for the sake of the common good, either nature or law willed certain persons to possess. Thus the law, in view of the common good, establishes the management of the spouses’ goods and the order of successions. By other private agreements, desires and undertakings very contrary to the common good would be aroused: for example, agreements concerning a future inheritance often contain a certain baseness and readily suggest desires contrary to—and sometimes dangerous to—the safety of him whose goods are in question. c) Invalidation also keeps violence and fraud out of private stipulations; it protects those who are weaker in age, mind, sex, and so forth.

To the minor. For it is evident that it is directly in the interest of the commonwealth that there be suitable sanctions against crimes, and that those things be prevented which of themselves are repugnant to the common good. It is, moreover, very conducive to the common good that particular justice be observed among the citizens. Therefore.

This is confirmed by a response of the Sacred Penitentiary of January 21, 1873. It was asked concerning an Italian law of May 1, 1866, which rendered invalid a stipulation by which the creditor reserved for himself the right to demand money in place of “paper currency”: “Whether a simple condition added to a promissory note, that restitution is to be made in no other way than in sounding money [coin], loses its force, even in the forum of conscience, through a subsequent civil law rendering it invalid.” It replied in these words: “As a rule, affirmatively, unless particular circumstances stand in the way” (Acta S. Sedis, vol. 7, p. 211). It therefore acknowledged this faculty of the civil power.

328. B. OF THE SECOND PART. These laws, however, are of strict interpretation.

A positive law which restricts natural liberty and takes away rights granted per se by nature is, as odious, to be interpreted strictly.

But. An invalidating law is of this kind. Therefore.

This is confirmed: 1) by the authority of Suárez and Laymann. The former, On Laws, bk. 5, chap. 32, no. 7, affirms: “The words of the law are to be weighed rigorously and are always to be interpreted strictly, because the subject matter is odious.” The latter has the following, On Laws, chap. 16, no. 9: “It seems that the answer should be that, if it does not sufficiently appear either from the subject matter of the law or from the words which the legislator used that his intention was to render the act invalid even in the forum of conscience, and the doubt therefore persists, the latter (or fourth)² sense of the law is to be preferred as the more benign.”

² According to which, of itself, before the sentence of a judge the act is null only civilly.

2) By article 1123 of the French Code, which promulgates the principle of the capacity of persons to contract; by article 1107, which, besides the agreements of which it treats, also admits others; and by article 1134, which acknowledges that agreements are generally efficacious.

329. C. OF THE THIRD PART. Concerning present-day positive law, it must be answered that, as a rule, acts which are pronounced null are not deprived of their natural force before the sentence of a judge.

1) General Argument. Present-day laws are made under such circumstances that, as a rule, it is not established—this is the least that we affirm—that they will immediately, or before sentence, to take away the obligation of the forum of conscience.

But. From the second part it follows that in doubt one must stand for the more benign part, or for the lesser invalidation. Therefore.

To the major. For: a) of itself, external peace and governance are now intended more in civil law. Cf. Suárez, On Laws, bk. 5, chap. 32, no. 7; b) today the external regime of coercion is so perfect and effective that immediately moral sanctions can be omitted with less inconvenience; c) the present-day civil legislator is accustomed more to neglect and disregard what obtains in the forum of conscience, so that there are writers to whom no law now seems of itself to bind the conscience. Although this is perhaps excessive, this at least is safely maintained: that civil laws are to be held as penal laws until a greater obligation is proved to be required by an open declaration or by the very end of the statute. (Cf. vol. 1.) But the grounds of obligation and of invalidation in the forum of conscience stand alike. Cf. Lehmkuhl, work cited, p. 33.

2) An Argument Proper to the Various Laws.

Concerning English law, Crolly, work cited, vol. 2, no. 196, and Rev. Fr. Slater, On Justice and Right, no. 60, bear witness to this; at the same time they confirm what has been said by the authority of jurists.

Concerning Belgian, French, and Dutch law, Fr. Van Gestel, work cited, from no. 71 to the end, proves the same, not without a display of learning. Moreover, as regards the French Code, the legislators, in ordering obligations, followed an imitation of Roman law, under which the fullest invalidation was held to be truly doubtful; and they signified their intention so obscurely that tribunals and jurists have very great difficulty in declaring the manner in which an act is infirm, even civilly.

Finally, Italian law is usually very similar to French law; and the doctors who wrote in Italy agree with us, such as the Rev. Fathers Bucceroni, Moral Theology: On Justice, no. 92; Palmieri, Moral Work, vol. 3, pt. 3, no. 44, note; and Rev. Dr. Berardi, Practice of Confessors, vol. 1, nos. 1723, 2740.

Concerning German law, Rev. Fr. Lehmkuhl, Das bürgerliche Gesetzbuch, etc., p. 27 ff., confirms our positions.

330. III. Difficulties.

1. AGAINST THE FIRST PART.

a) A positive human law cannot take away a right granted by nature. But. A law rendering an act absolutely infirm, even for the forum of conscience, would attempt to take away the natural right of contracting freely. For it would declare invalid agreements which stand by the law of nature. Therefore. Such a law would be neither just nor valid.

Reply. I distinguish the major. A human law cannot take away a right which nature grants even in the composite sense of the law, I concede. In the divided sense, I subdistinguish: it cannot do this at pleasure, I concede; to the extent that the common good demands it, I deny. I contradistinguish the minor.

For the rights which nature grants to private persons must be harmonized with the rights which it attributes to the public authority for governing society. Hence, those things which nature permits it no longer permits if, for a motive of the common good, they are prohibited by law; while rights which it grants, but which are alienable, can, by the very law of nature—if the other requisites are present—be taken away from private persons by public authority, just as by a private agreement. For the rationale of the common good is more weighty. Yet, because human law can do nothing against the law of nature, a law would prohibit in vain what is commanded by nature, nor would it avail to take away an inalienable right. Cf. Suárez, On Laws, bk. 2, chap. 14, nos. 14-20, and Van Gestel, nos. 51, 52.

Instance. But. The common good does not demand this efficacy. For civil law is contained within the external order. Therefore. Invalidation in the external forum suffices.

Reply. I distinguish the antecedent. Civil law is contained within the external order insofar as it directly touches only external things, I concede; insofar as it cannot indirectly touch internal things also, or command from a motive other than an external sanction, I deny.

Otherwise, no law would now bind the conscience. You must distinguish the object of the precept from its motive and sanction. But invalidation in the internal forum pertains to those sanctions which, being more efficacious through external force, can legitimately be established for the end of society. The Creator of nature himself gave this power to princes.

2. AGAINST THE SECOND PART.

The cause of the common good is most favorable. Therefore. An invalidating law enacted for the common good ought to be understood in a broader sense.

Reply. I concede the antecedent. I distinguish the consequent. Unless the common good itself demands a restricted interpretation, I concede; otherwise, I deny.

For such a law restricts natural liberty. Moreover, it is generally expedient that this liberty be impeded as little as possible.

Nevertheless, one must not proceed rashly in this matter. We shall take this one point for confirmation: although St. Alphonsus, bk. 3 (4), no. 641, doubt 2, wished that promises of marriage made from a shameful cause be rendered fully infirm, others judge that this would be the reason why deceivers would become bolder. Many likewise hold doubtful the utility of a law which denies an action for exacting those things which are owed from gaming.