General Notions and Outline of the Question

287. The notion of a contract. 1. A contract, which it is of no importance to distinguish from an agreement,¹ is defined: “The consent of two or more persons to the same agreement” [law 1, Huius [Of This], § 2, Digest, “On Agreements” (II, 14)]. It is apparent that an agreement which pertains to juridical relations is in question.

¹ Formerly the definition handed down applied more to an agreement than to a contract. For the word contract had a less extensive scope, since it designated only agreements concerning the contraction of a bond of law, and not those which extinguish an obligation.

2. The essence of every contract consists in three things:

A thing, or matter, by which is designated the object concerning which it is occupied: either remote, for example, a horse or a house, or proximate: a horse to be sold or let. Moreover, it can be a thing properly so called, a human act, or the omission of an act. The proximate object is signified by the word agreement. For it is that common term in which, within the remote object, the wills of those making the agreement formally concur.

The consent of persons who are capable at law.

The cause why one party either transfers to the other a right in a thing or assumes a personal obligation of justice. The cause, however, which is considered here is the proximate or intrinsic end of the performance made or the obligation assumed; and therefore, in an onerous contract it will be the performance or promise of the other party, while in a gratuitous contract it will be the very intention of doing good.

That a cause of this kind pertains to the essence of a contract is apparent from the fact that without an immediate or proximate end there is no human consent.

Take care, therefore, that you do not transfer that rationale to a merely impelling cause or a more remote end, which lies outside the essence of the contract. Thus, if many agreements are made because of news of war or peace, nevertheless neither report can be held as the juridical cause of these agreements; rather, in the individual stipulations, the proximate rationale of the performance or debt is to be observed. This is customarily expressed by the very name of the contract. A donation, for example, denotes a certain delivery of a thing from a liberal intention; to sell is not merely to cede a thing, but to cede or promise it on account of the promise of a price, while to buy is to promise the price on account of the performance or promise of the thing.

3. The effect of a contract is a certain commutation of rights: either of real rights, as, in our law, in a donation, or of personal rights, so that at least one party is bound from justice to perform something—to give, to do, or to omit. Through a contract, therefore, either a person is bound, or a thing—a right in a thing—is transferred from one person to another.

Formerly, when ownership was not transferred by consent alone, the immediate effect always consisted in an obligation. Hence the more ancient descriptions of contracts are now less perfect, though they are still retained by theologians or jurists, as when a contract is said to be “an agreement by which one or more persons bind themselves toward one or more persons to give or do something.” For what is to be said of a donation, where no obligation is assumed? Cf. what Crolly elegantly disputes concerning this matter, vol. 2, nos. 5-8.

288. Species of contracts. We shall give those which will come into use for us. Accordingly, contracts are:

a) From their end or cause, gratuitous or onerous, according as liberality or one's own advantage is intended by the party who cedes a right. A mixed contract, which in French law is assigned to onerous contracts, participates in both rationales, as if you sell a thing while remitting half the price.

b) From their form, α) Consensual, which are perfected by consent alone—as, in French law, a sale—and real, which take their beginning from the thing delivered: a pledge, a loan for consumption;

β) Solemn, for which the law has prescribed a peculiar form pertaining to their very existence: thus an agreement concerning the regime to which, after the marriage has been contracted, the goods of the spouses will be subject; and simple, which can be made in any form sufficient of itself: thus, today, most contracts;

γ) Express and tacit, according as consent is declared by words or by other signs, as if a defendant approaches a legal expert who is to become the advocate of his case, and the latter in fact defends the case.

N.B. Jurists sometimes derive from a quasi-contract—a tacit contract—an obligation which proceeds from a law presuming consent: as in the management of another's affairs, when the owner must ratify what another did in his place.

c) From their effect, α) Unilateral, which produce an immediate obligation of justice for one party alone, and bilateral, which produce it for each party, so that one obligation is the cause of the other. I say immediate, and not merely from a consequent fact: thus a deposit is judged a unilateral contract, although the depositor himself can be bound for losses proceeding from a defect of the thing deposited.

You should observe that this division does not coincide with the first. For an onerous contract, such as a loan at interest, can be unilateral.

β) Naked and clothed, according as by themselves they generate only an obligation of conscience or also a civil action. The former obligation is called natural. Cf. below, chap. 3, Scholia.

γ) Valid and firm, and invalid and infirm, according as the obligation of conscience itself either fully obtains, is empty, or is in some manner unstable. An act which is efficacious until it is invalidated by a judge is not rarely called rescindable; and, more strictly, in French law that word applies to a contract against which an action can be brought on account of lesion, or loss suffered.

Now an act to which the law does not furnish civil protection is less firm, whether it condemns or prohibits the act, or merely ignores it.

289. Consequences to be kept in mind. 1. From the definition itself, a contract contains a voluntary commutation of rights, which rests wholly upon consent as its proximate but adequate cause.

2. Every contract consists in a certain condition given or a promise of someone offering, and the acceptance of the other person. Before this acceptance, that condition is called a pollicitation, which is therefore described as: the promise of the offerer alone. Moreover, in a bilateral contract there are two promises and acceptances.

3. The obligation of a contract, since it is an obligation of justice, places a title in the other person, or denotes a debt on account of the other's right. Cf. nos. 11, 14. And this obligation is to be distinguished from the obligation of fidelity. Hence it will be useful to say a few things concerning the latter.

290. The obligation of fidelity.²

² Concerning this obligation, cf. Vasquez, on the Third Part, vol. 4, disp. 6, On Marriage, at the end; and C. de Lugo, disp. 23, nos. 1-15 and 41.

1. By this obligation someone is bound to do what he said he was going to do. Yet not every signification of an intention concerning a thing to be done by oneself imposes this burden of carrying it out. But if someone, while signifying such an intention, at the same time wills that the other believe and trust him, the intercourse of men among themselves, which rests upon mutual faith, demands per se that this intention be satisfied.³ Therefore, the proximate rationale of the obligation is the pledging of one's faith, that is, of the quality which makes a man worthy of being believed and trusted; while the remote rationale is the necessity of the intercourse of men among themselves, to which frauds are opposed.

³ God also owes it to Himself to keep His promises. The rationale of this necessary will is not some requisite of human society. But since that infinite Goodness and Holiness necessarily reduces all things to Himself, it is necessary that He conciliate for Himself the greatest confidence of creatures through absolutely inviolable fidelity. Cf. in the first volume the similar rationale of divine veracity.

2. There is, therefore, a certain similarity between truth and fidelity. Each obligation is ultimately sought from the good of social communication: whether you have spoken or promised, you intend to establish credibility and will that the other believe you; the other person is deceived by false speech just as by inconstancy in promises. Indeed, each—both he who keeps his promises and he who speaks true things—brings it about that there is a certain conformity between words and deeds: the former procures that the things which he says come to be; the latter, that he says the things which are. Nevertheless, we would not follow Vasquez and C. de Lugo in pursuing this similarity so far that in each case we see the formal obligation of making signs agree with the thing signified. For he who departs from truth is called a liar, while he who does not stand by his promises is unfaithful, and he is not said to deceive by falsehood but by inconstancy. For he who trusts someone's promises commits himself to the constancy of the other. But in order for someone to trust promises, it is first necessary that he believe words. And for a twofold cause someone's promises are made of little account: either because, lacking the intention of carrying them out, he appears to promise fictitiously, or because he does not appear likely to keep true promises. We charge a fictitious promise with falsehood, but not with infidelity strictly so called—against C. de Lugo, work cited, no. 5; and if perhaps there is an obligation materially to carry out the fictitious promise, its cause will never be the promise itself, but the rationale of avoiding scandal, harm, etc. Hence he who makes a fictitious vow, that is, promises God, is per se neither bound by the vow nor judged to sin gravely. Cf. St. Alphonsus, bk. 3 (4), no. 201, q. 2.

3. Between a promise from justice and a promise from fidelity there is this difference: by the former a right is granted; by the latter faith is given. The title of the former obligation is in the other person; that of the latter is in the promisor, who, if he is unfaithful, derogates not from the right of another but from his own fidelity. The former is per se grave; the latter per se light. He who has a right can, when a sufficient rationale is present, take what is his secretly; this is not licit for him to whom something is owed from fidelity. Since no one acquires a right from another unless willing, a promise does not oblige from justice before the positive acceptance of the other person. On the contrary, nothing per se prevents you from being bound from fidelity without the positive assent of the other. If, however, he positively refuses or remits the obligation, he will no longer be deceived if you change your intention; hence the obligation of fidelity will at the same time be removed.

Finally, if the promise concerned a thing and did not regard one's own act, each obligation per se, as C. de Lugo, disp. 23, no. 98 ff., and others say, passes from the deceased to the heirs. Nor is this doubted concerning the obligation of justice. As regards the obligation of fidelity, C. de Lugo offers this rationale: goods are indirectly affected by such a promise. We rather judge that the matter is to be evaluated from the will of the deceased. If he willed absolutely to stand by his promises, he is truly judged to bequeath the thing to the promisee. The heirs will then be bound by an obligation of justice to execute that legacy. This legacy, however, will be infirm by positive law unless it is contained in a valid testament.

4. Toward God we are bound by no obligation of justice strictly so called. The general rationale indicated in no. 6 stands in the way. Moreover, where a promise is in question, His will to acquire a new right is not established. On the other hand, He cannot be deceived either by our fiction or by our inconstancy, which is too well known to Him. Therefore, the rationale of the obligation of fidelity also appears to be lacking.

But that alienation of freedom through the promise of some better good, that is, a vow, contains a greater humiliation of one's own will beneath the divine will and, by confirming us in good, so perfects us that it is already apparent of itself that it ought to be an efficacious cause of a duty of religion. Add to these that negligence in keeping promises argues per se a lesser estimation and a certain contempt of the person to whom they were made. The irreverence which is therefore inherent in the violation of a vow is necessarily opposed to religion. Finally, that vows are sanctioned by God is established from clear testimonies of Sacred Scripture. But because it pertains to religion, the obligation of a vow becomes grave by its genus and is to be estimated from the necessity of the virtue of religion.

5. Therefore, the rationale of a promise is threefold: a vow, which obliges from religion; a contract, which obliges from justice; and a simple promise, which obliges from fidelity. Through a mere resolution nothing per se has been detracted from freedom of the will, except that levity and inconstancy, even if no one is deceived, already contain a certain venial disorder.

291. Ordering of the question. 1. Of the three elements of contracts, the first, the thing or object, does not seem to be called into controversy. For the required qualities are sufficiently established, which come down to this: that the object be possible,⁴ capable of valuation by price, and sufficiently certain or definite. Otherwise, the agreement would be fruitless or trifling.

⁴ We refer to this the requisites by which a thing is said to have to exist, at least in hope, and to be capable of commerce.

2. They will the cause to be true and licit. Hence, in the first chapter, we shall weigh the effects of agreements whose cause is shameful.

3. We shall remain longer upon the principal element of consent, so that we may attain a more perfect account of contracts. Accordingly, we shall divide the second chapter into three articles, in which we shall dispute in order:

a) Concerning the necessary qualities of consent;

b) Concerning the defects of consent;

c) Concerning the necessary notification of consent.

Finally, in the third chapter, we shall investigate what force is inherent in civil laws which render juridical acts invalid.