Article — Vermeersch, Questions on Justice
Article III. The Notification of Consent and the First Beginning of the Obligation
Lessius, On Justice and Right, chap. 18, dub. 6; C. de Lugo, On Justice and Right, vol. 2, disp. 22, nos. 26-35; Carrière, On Contracts, no. 34; C. d'Annibale, vol. 1, no. 224; Lehmkuhl, vol. 1, nos. 1061, 1062; Ballerini-Palmieri, Moral Work, vol. 3, pt. 3, nos. 47-51; Crolly, Theological Disputations on Justice and Right, vol. 2, disp. 3, § 4, point 3.
Thesis XXIII
It is essential to a contract that consent itself, insofar as it is the offerer's, but, more probably, not insofar as it is the acceptor's, be notified by the one to the other.
Therefore, per se, an absolute obligation from a contract takes its beginning, in a unilateral agreement, from the external acceptance of the other party, but, in a bilateral agreement, from the notified consent of the counter-promisor.
316. I. State of the Question. 1. IN THIS THESIS WE TREAT the required notification of consent, from which it will at the same time be possible to define the time of useful revocation. That question concerning the first origin of the obligation is plainly of no practical importance except when an agreement is celebrated between absent parties.
2. OPINIONS. All require notification by the first offerer.
Not a few jurists1 require notification of the acceptance also.
1 Cf. Carrière, On Contracts, no. 34; Baudry, Précis de droit civil [Summary of Civil Law], vol. 2, no. 797 bis.
Most, distinguishing unilateral contracts from bilateral contracts, require mutual notification in the latter alone, and thus concede to our opinion. So C. de Lugo, disp. 22, nos. 27, 29; Ballerini-Palmieri, no. 48. Yet they do not affirm in words so conceived the conditioned obligation of the first offerer, which, as we shall presently declare, we think arises earlier per se.
Finally, others, such as Carrière, no. 34 at the end, and Rev. Fr. Lehmkuhl, vol. 1, no. 1061, think that reciprocal notification is not required per se even in a bilateral contract, but that even a bilateral agreement is completed per se by the externally accepted offer of the first party.
3. THE TERMS ARE EXPLAINED.
It is essential to a contract: so that, even by a spontaneous renunciation of the parties, a contract cannot formally subsist when this has been omitted.
That consent itself, insofar as it is the offerer's, but, more probably, not insofar as it is the acceptor's. Therefore, in order that there be consent efficacious of an obligation, it is necessary, in our opinion, that consent be notified insofar as it is an offer; but it is by no means necessary, as we judge more probable, insofar as it is an acceptance.
Be notified by the one to the other. Notification is like promulgation in a law. It is, therefore, the declaration of the mind, or the notification of a resolution, through the mediate or immediate—but nevertheless formal—speech of one contracting party with the other.
Therefore, per se. For the parties can, by express or tacit will, reserve for themselves a greater faculty, or defer the first moment of the obligation to a longer interval.
An absolute obligation from a contract. For a conditioned obligation, by which the first offerer can no longer withdraw at his own discretion, but depends upon the discretion of the other, to whom the option of binding himself or not is given, can exist and does exist per se in a bilateral contract from the moment when the other has externally accepted the first promise.
But, in a bilateral agreement, from the notified consent of the counter-promisor. Here, therefore, we require a twofold notification, before which an absolute obligation or perfect bilateral contract cannot be present.
II. Proof.
317. A. OF THE FIRST PART. Concerning the necessity of notification.
1. CONSENT MUST BE NOTIFIED INSOFAR AS IT IS THE OFFERER'S.
The right which the offerer cedes must be placed by the offerer himself in that state in which it can be acquired by the other party.
But. By notification alone it is placed in that state.
Therefore. Consent, insofar as it is the offerer's, must be notified by the one to the other.
To the major. That which places it in that state exercises a true causality, even if perhaps instrumental, upon the very loss of the right, just as the external speech of God itself pertains to the motive of faith. But that whole causality must be attributed to the will of the offerer. Otherwise, the cession would not be wholly voluntary.
To the minor. For a right cannot be acquired dependently upon another's cession unless the will of the one ceding has been communicated to the other; this is done among men through speech alone. But to state a will of this kind is, in the strictest sense, to notify it.
2. IT NEED NOT BE NOTIFIED INSOFAR AS IT IS THE ACCEPTOR'S.
First Argument. The consent of the acceptor is required only such that a right can be acquired among men.
But. For that effect, a formal notification made to someone is not required per se. Therefore.
The minor is proved. Through the occupation of a thing belonging to no one, its ownership is acquired without any formal declaration.
Confirmation. For this is the effect of a notified offer: that the other have the same faculty of acquiring another's thing which anyone has of acquiring a thing belonging to no one. For this, an external sign of consent suffices.
Second Argument. A cause cannot be posterior to its effect.
But. After the external acceptance of the other, there is already of itself the consent of two or more persons to the same agreement, which is the definition of a contract.
Therefore. The notification of consent, insofar as it signifies acceptance, is of itself posterior to the contract and therefore cannot of itself be required as a cause.
Third Argument. If notification of acceptance as such were required of itself, a process to infinity could scarcely be avoided. For, by parity of reasoning, a new notification would be necessary by which it would be signified that the prior notification had been received before consent was revoked, and so on. Carrière explains this more broadly in On Contracts, no. 34, where he treats the third opinion.
318. B. OF THE OTHER PART. Concerning the first origin of the absolute obligation.
From a perfect contract, since an obligation is its necessary effect, an absolute obligation arises.
But. Per se, a unilateral contract is perfected by the external acceptance of the other party, but a bilateral contract by the notified consent of the counter-promisor. Therefore.
To the minor. 1. Concerning a unilateral contract. It is not perfected before, since the external consent of each party has been proved essential. It is not perfected later per se, because in a unilateral contract the other party merely accepts and does not counter-promise, while acceptance does not have to be notified per se.
2. Concerning a bilateral contract. In a bilateral contract, unlike in a unilateral contract, the acceptor or promisee also in his turn offers or promises something. For example, in a sale one offers the house, the other the price; in marriage, by words which express present consent, each hands over the body and accepts the handing-over made by the other. Therefore, the consent of the counter-promisor contains an obligation.
But. An offer must be notified.
Therefore. Before this consent is notified by the counter-promisor, that contract is not perfected.
Yet the first offerer, by the same speech by which he notified his offer, could already accept the future offer of the counter-promisor, and thus already be bound conditionally: “if the other should counter-promise some such thing.” This happens through the notified consent of the latter. Therefore. Per se, once that notification has been made, nothing is now lacking for the perfection of the contract.
This last point can also be shown thus. In some cases all confess that the first offerer can no longer withdraw, although he has not yet received notice of the consent of the other—for example, if he has sent the price itself together with letters proposing the purchase of a horse.2 Therefore, once the essence of a contract strictly so called has been perceived, by the same speech by which he offers a thing—for example, for purchase—the offerer can efficaciously accept the other's counter-promise if any should be forthcoming. For the essence of things is changed in no case.
2 Cf. Ballerini-Palmieri, work cited, no. 50.
319. III. Difficulties.
1. IT IS NOT REQUIRED THAT THE CONSENT OF THE OFFERER BE NOTIFIED.
That notification would be necessary for this reason: so that the promise could be accepted by the other. But this rationale is null, for someone can accept a future promise in advance. Therefore.
Reply. I concede the major. I distinguish the minor. That acceptance will produce its effect from the promise, now future, once it has been notified, I concede; from the promise once it has been made, I deny.
For nothing can be acquired by acceptance except what in fact can no longer be retained by the promisor. Otherwise, acceptance would despoil the promisor of some faculty or right of his. For the offerer has the right of retaining the thing until he has formally handed it over through notification. You will say that the promisor can cede this right of his. We do not deny this, provided that he has notified this will of his to cede. But in this way there is already in advance a certain general notification of a future offer. Concerning this difficulty, cf. C. de Lugo, disp. 23, no. 67.
Otherwise you would also arrive at this absurdity: that someone who had once manifested that he would accept everything which others wished to give him would thereby bind any promisors, so that before notice was communicated he himself would acquire an absolute right. Cf. C. de Lugo, disp. 23, no. 67.
2. NOTIFICATION OF ACCEPTANCE IS REQUIRED.
a) For just as I must manifest to you my will of obliging myself, so you must manifest to me your will by which you will me to be bound to you. (Thus, approximately, in C. de Lugo, disp. 22, no. 27.) Nor is there a difference between a promise and an acceptance.
Reply. I deny it. For acceptance, formally taken, has the rationale of the acquisition of a right; but for acquiring a right, it suffices that the faculty has been given to me and that I apprehend the object in a human manner, just as no notification is required for acquiring, by occupation, a thing belonging to no one. Cf. C. de Lugo, disp. 22, no. 29.
N.B. Therefore, the rationale why we demand, in bilateral contracts, notification of the consent of each party is not that “just as a mutual cession of right, so mutual acceptance is required” (Rev. Fr. Lehmkuhl, vol. 1, no. 1061), but that, before notification, there is no mutual cession of right as regards the right which the other party transfers.
b) In bilateral contracts, acceptance cannot be distinguished from the will of obliging oneself. Therefore. Notification of consent is required insofar as it signifies acceptance. Thus, approximately, C. de Lugo, disp. 22, no. 29.
Reply. I distinguish the antecedent. It cannot be distinguished materially, I concede; formally, I deny. I distinguish the consequence likewise.
3. EACH RULE CONCERNING THE FIRST ORIGIN OF THE OBLIGATION IS FALSE.
Either external acceptance suffices, and then, even before the consent of the counter-promisor is notified, an absolute obligation of the bilateral agreement already arises; or notification of acceptance is required, and then a unilateral contract is not perfected by acceptance. Therefore. One or the other assertion is false.
Reply. I concede the disjunction and its former member, but I deny the former consequence, because the consent of the counter-promisor contains an offer, and as such must be notified.
Instance. But. It need not be notified as such.
For “the first party, who offers something to another who is absent under the condition of a reciprocal offer of the price or of another thing, can immediately accept hypothetically this offer of the other contracting party which he awaits. If he does this, then, when the other consents to the proposed conditions, both the offer and the acceptance of each party are present, and these are not merely hypothetical but absolute” (Lehmkuhl, vol. 1, no. 1061).
Therefore. Before any new notification, there is a perfect contract.
Reply. I distinguish the major. The first party who offers something to another who is absent can accept the other's offer hypothetically, that is, under the condition that the other's consent be given and notified, I concede; that it merely be given, I subdistinguish: he can will this in such a way that the other is bound before notifying his consent, I deny; in such a way that he himself can no longer withdraw from the consent externally given, I concede. I contradistinguish the minor. With the consent notified, this offer and acceptance become absolute, I concede; before notification, I subdistinguish: they become absolute, that is, released from the discretion of the first offerer, who is bound, I concede; simply, I deny. I deny the consequence. Cf. the reply to the first difficulty.
That a right has not been acquired by the first offerer before notice of the acceptance has been received can also be shown thus. No one denies that the acceptor can reserve for himself the faculty of withdrawing until notice of his acceptance arrives. But lest this faculty become nugatory, must not the first offerer await notification of the will before disposing of the right which he wished to acquire for himself from the other? Therefore. Per se, he is prohibited from disposing of the right before this notification, and therefore the right has not been acquired by him.
IV. COROLLARIES AND SCHOLIA.
320. Notification made to an agent suffices. Because an agent represents the person of the principal, notification made to the agent suffices for the contract to be perfected.
C. de Lugo, disp. 22, nos. 33, 34, attempts to explain the case proposed at the end of no. 318, 2, on the ground that the first offerer then makes the other party his mandatary, who notifies to him as principal the consent which he gave as a contracting party. Who does not see that this is devised too subtly and is contrary to the common understanding of the matter?
In the same case, the counter-promisor will also be able efficaciously to revoke his consent until it has been notified.
321. A promise in favor of a third party. He who promises Titius that he will do something in favor of Caius is not bound toward Caius by an obligation of justice before Caius has duly learned of it and accepted it. But he will be bound toward Titius, provided that the latter has an interest—whether by reason of the thing or by reason of a connected person—that the promised performance be executed. And by the law of nature he will not be able, against the will of Titius, to revoke his promise and take the option away from Caius. Cf. Carrière, no. 230.
322. Concerning the obligation of the first offerer. Most often, in a bilateral contract, neither party wills to be bound before the other, so that their condition may be equal. Hence that conditioned obligation of the first offerer is not regarded as present unless a will of this kind has been manifested sufficiently openly.
323. Concerning the positive law of France, it is established that a donation is not perfected before the donee has notified his consent to the donor (art. 932). As regards other acts, jurists divide into three opinions. But those who hold that a contract is perfected by acceptance understand such an acceptance that it is no longer within the power of the acceptor to retract the signs of the acceptance made. They therefore will consent to be so manifested that it can in no way be equated with a resolution retained in the mind. Thus written letters can be destroyed; but when they have been entrusted to the public office by which they are sent—a lettre jetée à la poste [letter put in the post]—they already constitute a certain document of consent. Cf. Baudry, vol. 2, no. 797 bis; Laurent, vol. 15, no. 479; Aubry and Rau, vol. 4, § 343, note 3; Thiry, II, p. 555 ff. According to the new German code, art. 151, contracts are perfected by the acceptance of the offer alone, unless, according to received custom, notification of the acceptance must be awaited. The various provisions concerning the conditioned obligation of the offerer are also worthy of consideration. They come down approximately to this: that the offerer is bound per se by his offer, provided that the other party replies immediately—by word, if the matter is transacted face to face; otherwise, by letter. Cf. arts. 130, 145-150.