Article III. Supplements to the Doctrine

I. COROLLARIES.

331. A practical norm for discerning whether acts which are annulled by civil law are invalid in the forum of conscience before every sentence of a judge can therefore be conceived briefly thus: Unless the fullest abolition is proved necessary from the subject matter and end of the law,¹ or unless it is established from common understanding or a clear manifestation of intention that the legislator willed to impede every effect of the act, the validity of the act for the forum of conscience is to be upheld until the sentence of a judge has intervened. Therefore, the exceptions to the rule handed down in the third part of the thesis are to be derived from the subject matter or end of the law, or from a special sign of the will.

¹ For then the intention of binding immediately is contained virtually in the serious will of the law itself.

It is not enough, however, if the legislator has said: “We declare it null, invalid”; “This solemnity must be employed for its very existence.” For these expressions are ambiguous, since there is a twofold rationale of existence, civil and natural. But what clearer words, you will say, could be used to signify the intention of wholly annulling the act? Will it be necessary to say, “We render it invalid in the forum of conscience,” which is foreign to every usage of lawmakers? To this difficulty, which Carrière, no. 150, objects to us, we reply that words which are ambiguous of themselves can be clarified from the connected discourse and from public deliberation in Parliament, and that there is no need of a determinate formula.

Nor can it be established that acts which are extinguished from a motive of public order are immediately invalid in conscience. For such a motive does not always demand the fullest abolition.

Still less is the civil legislator, as Carrière, place cited, would have it, to be presumed to have touched the conscience unless his intention is established from elsewhere. For today, from his manner of speaking and acting, he rather gives occasion for the contrary presumption.

332. Concerning the sentence of a judge. Some writers, who nevertheless defend our side, seem to be deceived in this matter, while they imagine no sentence other than that by which an act is declared null by the magistrate. But, in order that a declaration of this kind can be obtained, it is required that the act bear some appearance of a valid act. Therefore, if someone has expressed merely in words an intention, even an absolute one, of bequeathing some good to Titius, that nuncupative testament, as they call it, does not exist even in appearance under the law which we use. Therefore, an action for obtaining its invalidation cannot be conceived. Only one judgment can therefore intervene here, by which the legatee who, relying upon such an intention, has retained the thing bequeathed to himself is condemned to restitution.

That judgment must be obeyed in conscience.

Briefly, therefore, we shall say: the sentence of a judge is to be understood in either of two ways—either that by which the title is directly rendered infirm, or that by which the thing seized under an unstable title is directly ordered to be returned, the title thus being tacitly annulled.

333. Consequences in the forum of conscience. 1. As a rule, therefore, before the sentence of a judge, if an agreement has been made which is invalid by civil law alone:

a) Unless natural equity stands in the way, it is licit to rely upon such an agreement and to accept the performance of the other party. That party, however, if by law it has a condictio indebiti (a right of reclaiming), will be able to reclaim what was paid, unless this again savors of fraud.

b) Apart from fraud, a person can with a safe conscience pursue his civil right of obtaining a sentence by which the act is wholly annulled.

Indeed, if the provision of the law is clear, so that there is no doubt about the future sentence, he himself can refrain from executing the agreement. For “what need is there of an empty circuit, that anyone should pay what will have to be restored to him?”² The other party, however, also ought per se to yield even before the sentence. Yet his obligation is one of charity alone: that of removing from the other party an inconvenience which is not in itself unjust.

² Laymann, Moral Theology, bk. 3, tract 4, On Agreements, chap. 9, no. 10.

c) Hence neither will it be licit per se to use occult compensation in order to take for oneself what is owed from such an agreement.³ For compensation contains coercion, which cannot be employed against him who has the right to keep the thing or to pay nothing.⁴

³ Formerly, most authors permitted occult compensation to him who was favored by an informal testament. But at that time, according to the more common opinion, that testament was held to be fully valid in conscience. Cf. Lessius, chap. 19, nos. 12, 22, 30. For, answering according to Roman law, they held succession itself by law to be a legal presumption of the will of the deceased; this presumption yielded to the truth of an open declaration, even if it were perhaps informal. Therefore, today we judge that those err who, relying on this opinion of the ancients while rejecting its rationale, have permitted compensation which is now denied by St. Alphonsus, bk. 3 (4), no. 283. Rev. Fr. Lehmkuhl, vol. 1, no. 1148³; Ballerini-Palmieri, vol. 3, pt. 3, no. 713; and C. d’Annibale, vol. 2, no. 255, note 40, agree with us; to the last of whom the contrary mode of opining seems “most remote from all the rules of our science and of law.”

⁴ Authors are accustomed, after C. de Lugo, disp. 16, no. 95, to think it difficult to discover the true rationale why, as the common opinion holds, someone whose right is merely probable cannot use occult compensation. We confess that we experience no such difficulty. For two arguments spontaneously occur: because, in doubt, the condition of the possessor is better (cf. no. 256), and because he who is permitted to retain the thing cannot be compelled to pay. But he is virtually compelled if the thing is secretly taken away from him.

You should observe, however, that it belongs to the rationale of occult compensation, strictly so called, that someone secretly take from another a thing truly possessed by the latter. Therefore, before the sentence of a judge, we judge it permissible for a legatee who has been instituted by an informal testament to keep the thing bequeathed which perhaps was already in his hands under another title, such as deposit, or even to remove it from an estate in abeyance; but, so far as the principles are concerned, this faculty ceases as soon as the heir has begun truly to possess the patrimony of the deceased.

It indeed happens that by positive law that heir is deemed to possess from the very death of the decedent; but we judge that the general canon proved by this very thesis—that a civil provision does not of itself immediately alter the rights of the internal forum—is to be applied to this purely civil possession (cf. no. 255, 4). St. Alphonsus, bk. 1, no. 35, as his answer is set forth in the note to the Heilig edition, seems to answer in this manner; and the Most Illustrious Bishop Waffelaert, On Justice, vol. 1, no. 579, plainly assents.

2. If an act has been rendered fully invalid by civil law, even in the forum of conscience, it is evident that what is nothing effects nothing of itself. Nevertheless, in order that this rigor may be suitably tempered, one must observe by what severity of enforcement the common good has been sufficiently provided for, and how the law has been received in practice and accepted by common custom. This is opportunely concluded by Rev. Fr. Van Gestel, no. 80, from the doctrine of Lessius, chap. 18, no. 22, and C. de Lugo, vol. 2, disp. 23, no. 156.

334. Concerning an inofficious donation, that is, one by which the legitimate portion of a necessary heir is impaired, French law provides that the act in which it is contained—a donation or a testament—is not civilly null, but that the heir can bring an action in court so that the things bequeathed or donated may be reduced to the just measure. Hence it is evident that, in the meantime, at least without injury to justice, the excess can be retained by him who received more by the absolute will of the deceased, provided that by no unjust devices he impedes the necessary heir from bringing an action for reduction.

Thus far the matter is sufficiently agreed upon.

But, in our opinion, Génicot, vol. 1, no. 677, undeservedly numbers among fraudulent means the dissimulation of a donation under the appearance of an onerous contract. But if a donor has the right to give his own things, by the same token he will be permitted to give his liberality that form which seems more accommodated to his intention. Nor is it forbidden by the positive law which we use that a donation be clothed in the form of an onerous agreement. Indeed, the use of this form is frequent. Thus this merely has a certain character of a concealed donation. Yet no one charges an inofficious donation with injury because it was made not openly but secretly. Moreover, it would be strange enough that, while no dissipation of a fortune is contrary to justice, a donation covered under the appearance of a sale should be repugnant to it.

II. SCHOLIA.

335. Full extinction from the intention of the parties. As Rev. Fr. Van Gestel, no. 74, rightly observes, if the parties themselves, as is customary in onerous contracts, did not will to agree except insofar as the act was lawful and protected by civil law, it is clear that a civilly null contract is not valid even in conscience, since the consent required by the law of nature was absent from such an agreement. Hence the practical importance of this disputation is almost confined to gratuitous contracts, or to those which, by reason of the person, cause, or subject matter, are known of themselves to be infected with a civil defect.

336. You will ask: what is the law if the party who has the faculty of rescinding has renounced this faculty beforehand?

The solution depends upon whether the rationale of the invalidating law also affects this renunciation. Hence:

a) If the nullity was introduced from a public motive—for example, that of agreements concerning a future succession—confirmation will effect nothing more;

b) If it was introduced to protect someone’s weakness, a confirmation made by a minor, and so forth, will labor under the same defect as the principal stipulation. Hence he will nevertheless be permitted to have recourse to the protection of civil law.

Except if he has used malicious fraud, as when by a fictitious promise he fraudulently induced the other party to enter into the agreement.

c) But if the rationale was one of private order, the parties who knowingly omitted a necessary solemnity, relying upon a mutual promise of ratification, will be wholly bound by the faith thus pledged. Thus, he who truly promised the execution of an informal testament could not seek its abolition without acting unjustly.

337. You will ask why, after the sentence of a judge, you affirm effects in conscience which were denied before the sentence.

Because, unless after the sentence of a judge a right were acquired or extinguished in conscience, a perpetual and positive contrariety between the legal and moral orders would be introduced. Not only could a debt of the internal forum not be sought in the external forum; but a right granted by law could not be exacted without sin. He who was owner by force of law would be a thief in conscience. Everything would then waver. But it is not permissible to ascribe so irrational a will to the legislator, by which, as C. de Lugo, vol. 2, disp. 22, no. 252, says, “the law would be judged of little utility, since it would serve only to foster the inequity of him who, conscious of the validity and obligation of the contract, would nevertheless attempt to despoil the just possessor.” Hence the rationale given in no. 327 then obtains.