Chapter I: The Shameful Cause of Contracts

St. Thomas, II-II, q. 32, art. 7, corpus; q. 62, art. 5, ad 2; Lessius, On Justice and Right, chap. 14, nos. 51-61; chap. 18, nos. 17-21; C. de Lugo, On Justice and Right, disp. 18, sect. 3; Carrière, On Contracts, nos. 328-338; Waffelaert, On Justice, I, 413-418, 473-481; Lehmkuhl, Moral Theology, I, 1052-1054; Ballerini-Palmieri, Moral Work, vol. 3, pt. 3, On Contracts, nos. 61-74; P. Van der Velden, Principles of Moral Theology, vol. 1, no. 112.

A contract whose cause is shameful has no force; nevertheless, after a shameful act has been performed by one party, the other party already owes per se from justice the fulfillment of the promise of an indifferent thing.

292. I. State of the Question. 1. INTENTION OF THE THESIS. This tends toward our endeavoring, by assenting to the far more common opinion, to resolve the question concerning a shameful contract.

A contract, however, becomes shameful from its cause strictly so called. It does not become so from another evil end which, although perhaps it moves one making the agreement, is nevertheless extrinsic to the agreement: as if, with the intention of bloody vengeance, you buy a sword. Nor does it become so from an illicit thing, concerning which the most honorable stipulations can be made: as if you promise a penalty in order to avert a crime more effectively. Moreover, a cause will be shameful which is directed toward something that is morally dishonorable of itself or by law:¹ as if one party promises a sin.

¹ It is not equivalent to require, as our laws do, a licit cause (arts. 1108, 1131, French Code). For many things today are placed among licit things which are opposed to right morals; other things which are commanded by a higher law are prohibited by human statutes; nor does the civil law itself always intend to bind conscience by its commands.

Now then, all indeed confess, and it is plainly established, that a contract by which one party is bound to perform something which it is unlawful for him to perform—for example, homicide—is per se null and invalid: this is the first part of the present thesis. But if it should happen that the shameful thing has been performed, it is more doubtful what right, after the act, belongs against the other contracting party. And our position is that he who performs the dishonorable act can demand money or some other thing, indifferent of itself, which the other had promised by agreement in return. For example, someone made this agreement with another: “I promise you one hundred if you inflict such an injury upon Titius.” The injury is inflicted in consequence of the promise; we contend that the hundred which the former promised are to be paid from justice.

By what title this is to be demanded, and by what limitations it is to be circumscribed, will appear clearly from what is to be said below.

2. OPINIONS. With the first part omitted, concerning which, as we said, all agree, St. Augustine² already has words which can be accommodated to our opinion only with difficulty.

² Epistle 54 to Macedonius (otherwise 153; Migne, P.L., vol. 33, col. 653). Lessius, no. 55, attempts to explain those words, but in vain, as it seems to us. Cf. C. de Lugo, disp. 18, no. 56.

St. Thomas expressly permits at least this: that the price paid for a dishonorable performance be retained. Cf. II-II, q. 32, art. 7, corpus; and q. 62, art. 5, ad 2. Lessius,³ C. de Lugo, work cited, especially no. 59, and the ancients commonly openly defend our opinion. St. Alphonsus, bk. 3 (4), no. 712, holds it as the more probable and common opinion. It also prevails among more recent authors, such as R. P. Lehmkuhl and Ballerini-Palmieri, who vigorously defends it. Some, however, follow the contrary side. Thus Beusch, On Agreements and Contracts, chap. 4; C. Gousset, Moral Theology, vol. 1, no. 753; Carrière, On Contracts, no. 333; and Van der Velden, O.S.F., work cited.

³ Chap. 18, no. 18. Cf. also chap. 14, no. 52.

But lest these men be understood incorrectly: for they circumscribe their opinion to the price of the shameful thing as such. For it happens that the substance of a thing honest of itself becomes vicious from the circumstances: for example, servile works are demanded and performed on Sunday. Then they will indeed deny that the perhaps greater price which you illicitly promised so that work might be performed on a feast day must be paid; but they will acknowledge that the demand for the customary wage, of which the work is worthy of itself, is just.

3. THE TERMS ARE EXPLAINED.

A contract whose cause is shameful: these things are clear from what was said in nos. 287, 2, and 292, 1.

Has no force, even before every sentence; or it is absolutely null, nonexistent.

Nevertheless, after a shameful act has been performed by one party: therefore, after the unjust performance which he had promised by contract has been made.

The other party already owes from justice, commutative justice. Therefore, not only can that which is voluntarily paid be retained, but the payment itself can also be demanded. The title, however, as we shall see, is distinct from the prior agreement.

Per se: that is, unless positive law, on account of the common good, affects the guilty person with this penalty: that he receive no recompense, not even indirectly, from the offense.⁴

⁴ Concerning our law, cf. no. 298.

The fulfillment of the promise of an indifferent thing. For if the counter-promise itself concerned an illicit thing, it must be performed for no reason. And we posit that the price promised is not prodigal; otherwise, it must be reduced to a just quantity.

II. Proof.

293. A. OF THE FIRST PART. A contract whose cause is shameful has no force.

A contract whose obligation is null is of no value.

But. The obligation of a shameful contract is null. Therefore.

The major is apparent, because the proper efficacy of a contract is this: that it gives rise to an obligation, especially since an immediate transfer of a real right is not now in question.

Something could indeed have been given from the agreement so that the other would assume this shameful obligation; but if this obligation is null, the thing itself, if received, would be retained without cause and therefore would have to be restored, so that what was being said is true: a contract whose obligation is null effects nothing.

To the minor. For the shameful promise either stands alone, as in a unilateral contract; or, if, as in a bilateral contract, it has as its cause an obligation assumed by the other party, this latter obligation, as correlative, will fall with it. But. There is no obligation from a shameful promise. Therefore. There is no obligation of a shameful contract.

This minor is proved. The law of nature—by which every obligation is ultimately established—cannot oblige the same person immediately and principally to one thing, and mediately and less principally to the contrary. For otherwise a contradiction would have to be admitted in the law itself. But. It obliges everyone immediately and principally to omit a dishonorable action. Therefore. It cannot, with a contract interposed, oblige him to perpetrate the same action; or, there is no obligation from a shameful stipulation.

N.B. If you consider a shameful action as an action morally impossible, or one for which there is no moral faculty, you will construct the argument by an almost similar rationale. For example: If someone owes the fulfillment of a shameful promise, the other has from justice a right to demand it. But. The law of nature cannot grant the moral faculty of demanding from someone that which it takes away his moral faculty of performing. Therefore.

294. B. OF THE OTHER PART. Nevertheless, after a shameful act has been performed by one party, the other party already owes per se from justice the fulfillment of the promise of an indifferent thing.

If you have performed for another something capable of valuation by price with the intention that he be bound by a reciprocal and definite obligation, he, by the consent with which he admitted a performance so made, will be bound per se from justice, unless nature is proved to reject that obligation.

But. The shameful work in question is an actual performance of this kind; nor is nature shown to be contrary to this obligation. Therefore.

To the major. For it is the customary form of a real contract which they call unnamed and present in this formula: Facio ut des, vel ut facias [I do so that you may give, or so that you may do]. The same is directly apparent from this: every consent which, like the consent described, has legitimate matter and cause is per se an efficient cause of an obligation, unless nature rejects this obligation.

To the minor. a) A shameful act is capable of valuation by price. For there can be inherent in it the rationales of an action that is pleasurable; useful—not absolutely, but for some chosen end; laborious; burdensome to the one doing it; and dangerous. Moreover, the faculty of doing it is proper to the agent. But. These aspects of what is proper to him are capable of valuation by price through agreement. Therefore.

b) It is apparent that the act was performed with the intention of obliging the other.

c) The other admitted the performance so made. For he who stipulates thus, “If you do this, I promise you one hundred,” while that consent remains, virtually holds the same thing as accepted if it is done with the intention of obliging him to pay the hundred. Nor can he free himself by revoking his consent unless he has warned the other not to act. Otherwise, as an unjust deceiver, he will be bound for the losses.

d) Nature is not shown to be contrary to this obligation. For repugnance is shown neither from the object, nor from the cause, nor indirectly from the consequences. And indeed, the object posited is the payment of an indifferent thing; the cause is the act, not formally insofar as it is shameful, but insofar as it is something capable of valuation by price, consisting in real being. The consequences which would stand in the way of sanctioning the obligation would be favor granted to the shameful thing and encouragement given to sinning.

But now the offense itself, since it has already been perpetrated, can no longer be efficaciously favored; and similar deeds are no more promoted per se if you grant this sanction than if you deny it. For if the hope of obtaining a reward moves someone to commit an offense, the hope of owing nothing moves someone to persuade others to commit offenses and to deceive simpler persons. Therefore, if any favor is taken away from the one carrying it out, it is at the same time granted to him who is more guilty, namely, the instigator or author. Since, therefore, although consent was given illicitly and the promise was made, nevertheless no universal rationale of the common good demands that this obligation be rendered infirm, nature could only leave to positive law the discretion of introducing that infirmity when opportune.

Cf. what C. de Lugo disputes concerning an illicit sale and its validity, disp. 18, no. 48.

Confirmation. According to the unanimous opinion of the ancients, a promise of marriage made so that a young woman would admit fornication induces an obligation of marriage if the condition has been fulfilled. Now, if our position were false, this obligation could certainly be demonstrated with greater difficulty from the necessity of repairing the loss alone, because the young woman could be judged to have acted at her own risk, since she knew the promise to be inefficacious. Cf. C. de Lugo, disp. 18, no. 59.

295. III. Difficulties. We shall reduce them to a few classes. They argue:

1. FROM THE ACT CONSIDERED IN ITSELF.

a) An illicit action is not worthy of a price.

Reply. Insofar as it is formally illicit, I concede; insofar as it is agreeable, useful, or laborious, I subdistinguish: insofar as a price is illicitly promised, I concede; insofar as it is not capable of valuation by price and is of itself promised invalidly, I deny. Cf. Marrès, On Justice, bk. 3, no. 160.

b) There is no price for a thing which cannot be sold. But. That cannot be sold over which someone does not have free disposition, as is the case with a dishonorable deed. Therefore. There is no price for a shameful performance. Therefore. Whether before or after the deed, there is no cause why the price should be owed.

Reply. I distinguish the major: a thing which cannot be sold either validly or licitly, I concede; which can be sold illicitly only, I deny. To the minor: that cannot be sold over which one has free disposition neither physically nor morally, I concede; over which one has physical disposition although not moral disposition, I subdistinguish: it cannot be sold licitly, I concede; validly, I deny.

2. FROM THE NULLITY OF THE PRIOR CONTRACT.

a) The obligation of paying the price was null at the beginning. But. What is null from the beginning is not made firm by the passage of time. Therefore.

Reply. I concede the major and the minor. I deny the supposition: that the rationale of firmness is taken from time.

It is derived from the changed circumstances, since, after the deed, the obligation to pay no longer has as its cause the obligation of the shameful action—an obligation which cannot exist—but the shameful deed, which physically existed, far from being impossible.

b) Nothing comes from nothing. Therefore. From a null contract an obligation to pay cannot arise.

Reply. I concede the antecedent and the consequent, and I deny the supposition. Or, I distinguish the antecedent and the consequent: nothing comes from nothing as from a cause per se, I concede; per accidens, or on an occasion, I deny.

An obligation cannot arise from a null contract as from a cause per se; but, on account of the elements which remain, it can be the occasion of another valid contract from which an obligation to pay arises.

Instance. But. It cannot even be the occasion. For the valuation and determination of the price to be paid was made by the prior agreement, which is null. But. This prior agreement, being plainly null, was null also as regards the determination of the price. Therefore. The price has not been determined. But. It is required that the object of an obligation be determined. Therefore. There is no obligation to pay.

Reply. I distinguish the major. The determination of the price was made by the prior agreement as something essentially cohering with it, I deny; as something concomitant, I concede or I pass over.

Indeed, when a thing is delivered for a price—or for another thing which has the place of a price—it is necessary that the price be established in some manner, so that the obligation to pay may be certain. But just as the price can be defined by common estimation without any particular agreement, so too it can be determined by a certain prior convention which does not necessarily introduce other conventions. For example, it can be agreed between us that whenever I ask you for a certain definite performance which you actually perform, your labor shall cost me so much. Perhaps thereafter I shall never ask; but if I do so, the price to be paid by me will be certain to us from another source. Therefore, when the obligation is contracted and the price defined at the same time, the stipulation concerning the price can be regarded as something concomitant, which can therefore be retained materially, although the principal agreement wholly collapses. This remains true: such a work was valued at so much.

3. FROM THE CONSEQUENCES.

a) He who pays the price after the wicked work has been perpetrated approves it anew, which is illicit.

Reply. I deny that this approval is necessarily contained in the payment. For someone can detest the deed and nevertheless will to stand by his promises. Cf. C. de Lugo, work cited, no. 55.

That difficulty proves too much. For it would thereby already become illicit to give the price, which no one will say.

b) The natural law which sanctioned this obligation would incite to sin, for it would incite to the shameful deed by which the price could be exacted.

Reply. α) I retort the argument. The natural law which rendered an obligation of this kind invalid would incite to sin, for it would incite men to promise rich payments for wicked actions, since a promise which can be violated with impunity is made more easily. And since the one commanding the deed is more the cause of the evil than the one carrying it out, it would favor sins more than in the prior case.

β) Directly. It would incite to sin per se, I deny; per accidens, I concede or I pass over.

For although it permits a certain temporal utility to be received from sin, at the same time it threatens eternal ruin. Hence per se it very greatly turns minds away from sin; per accidens it happens that some are moved more by a small temporal gain than by eternal punishment or reward. But if the natural law therefore had to render contracts of this kind infirm, a marriage celebrated against the just will of parents would be invalid, the father of a family would strive in vain to dissipate money, and so forth. Cf. Lehmkuhl, vol. 1, no. 1053.

COROLLARY.

296. The proximate cause of this obligation is not the shameful contract itself, which is wholly dissolved by the law of nature, but an unnamed contract which is not shameful and which nature afterwards introduces in its place.

SCHOLIA.

297. The case of retention and of petition is equal. Those who concede that a price paid for a dishonorable deed can always be retained, if they wish to speak consistently, must embrace our position. For by what title will it be retained? If as a price, then it was owed from justice; if as a donation, a will to bestow a favor is required, which will often be lacking, as C. de Lugo, work cited, no. 46, argues very well against Vasquez. The latter, moreover, does not contradict our thesis.

Therefore, we can invoke St. Thomas as positively agreeing with us.

298. Under French civil law, he who pays a price promised on account of a shameful cause has, even after the deed, a personal action, or an action for recovery of what was not owed, to reclaim the payment—unless, however, as many except, the shamefulness affected each party to the agreement: for example, that money was paid to a young woman so that she would consent to fornication. This money cannot be reclaimed. Cf. Aubry and Rau, Droit civil français [French Civil Law], vol. 4, § 442 bis. Yet by that law someone will not be prohibited from retaining the price paid with a safe conscience until restitution has been commanded by the sentence of a judge. Cf. thesis 24.