Article — Vermeersch, Theologia Moralis
Article II: On Individual Contracts
I. The contract of simple promise, which must be distinguished from a simple proposal and from a promise from fidelity, or from an obligation of mere faith concerning a good and possible thing, is a deliberate and spontaneous concession of a right to another accepting, toward some good and existing or possible thing.
Only an obligation of justice is grave: but they estimate grave matter at four times the quantity of theft absolutely grave. Nor is an obligation of justice presumed, but it is demonstrated either by words or by other indications, for example of mutual promise; it has its beginning from the external acceptance of the promisee, unless the promisor, for example on account of the form of letters, is judged to have wished to defer the obligation until acceptance was made known. If the promisor dies before acceptance, positive laws and, from the law of nature, the mind of the promisor, must be attended to.
II. Donation is a gratuitous contract by which one person, the donor, from an intention of liberality, concedes to another, the donee, his own thing as to dominion, without any obligation of restoring. Donation remains true, although it is allective.
It is often a solemn contract, unless donations made by short hand, or covered under the form of an onerous contract, are admitted.
Donation inter vivos and donation mortis causa are distinguished: the latter is revocable even up to death, and must be accurately distinguished from a donation, even under the condition of death, made by a sick person, or from a donation revocable in a certain case, for example if I recover. For several present-day laws do not admit donation mortis causa.
Persons ought to be capable of giving and accepting, whether for themselves or for a person whose goods they administer; and justice forbids a debtor to harm creditors by largess.
Attention must be given to laws which, from the presumed will of the one giving, oblige an heir to bring back received things or capital into the inheritance which he wishes to enter (collation).
III. Commodatum is a contract by which some thing, as to use alone, is gratuitously conceded for a certain time. If the time is not determined, but it must be restored at the will of the lender, it is called precarious. A law which obliges the borrower to make good a fortuitous case will bind conscience after the sentence of the judge.
IV. Mutuum and lending at interest. A mutuum is a real contract by which the dominion of some fungible thing is transferred from the lender to the borrower, with the obligation of restoring the same or a similar thing in species and goodness.
At the end of the mutuum, according as the matter or the price has rather been considered, a quantity of the same measure and quality, or a quantity of the same price, will have to be restored. From positive law, money of itself must be returned in the same numerical quantity in money legally admitted. The obligation of lending, which charity would otherwise impose, is often, but not always, excused by grave inconvenience.
A mutuum is gratuitous by its nature; nor, as such, does it contain a title of gaining. Usury, in the broad sense, is whatever beyond the principal must be paid to the creditor; in the strict sense it is an increase to be paid after individual intervals, especially if it is money. If usuries are sought, there is lending at interest.
It has always been lawful, by a prior agreement, to stipulate compensation of an extrinsic title which is truly present: ceasing gain, emerging damage, danger of the principal, indeed a long time through which the creditor was deprived of his things. But while the present condition of society perseveres, it is never unjust to lend monies under moderate interest, since today the possession itself of money has a value which is compensated by lending at interest. In the usual increase, the ordinary danger of the principal and ceasing gain are computed.
V. Census, in general, is a contract by which someone, the census-holder, acquires the right of receiving from the census-debtor an annual pension from another's thing or even from a person fruitfully working. It is distinguished as perpetual and temporary; of this kind is life-census, which is constituted for the life either of the census-holder or even of another person; redeemable and non-redeemable, according as, after a suitable sum has been paid, the census-debtor can remove the burden. Moreover it is constituted by gratuitous title or also by onerous title; in which case it becomes an aleatory contract.
VI. Purchase-sale. 1. It is a bilateral contract looking to the transfer of dominion of a thing for a price. Price, however, is called the value of a thing expressed in money. According as, by laws and cases, dominion is perfected by the consent itself or only after legitimate handing over or inscription has been completed, the contract will be consensual or real. This must be observed concerning other similar agreements.
- In the essence of purchase-sale there is distinguished:
a) Consent, an element common to every contract, which here can be given simply or subordinated to the examination of the thing, or subject to the faculty of redeeming the thing after a certain time. In certain contracts positive laws permit rescission for the seller on account of grave lesion.
b) The thing. This must be handed over at the proper time and, of itself, at the expense of the buyer. - Its substantial faults, which the buyer is clearly ignorant of, must be manifested, and accidental faults concerning which an inquiry is made, and, from positive law, hidden faults which are called redhibitory. - Of itself a true and pure thing must be handed over, although someone can accommodate himself to the received usages of upright persons. - If, on account of a defect of the title transferred by the seller to the buyer, the latter is disturbed or suffers eviction, that eviction must of itself be made good by the seller.
c) A just price must be required and paid. In commutations there is distinguished a legal price which public authority can impose for preventing abuses, especially in necessary things, or on account of another necessity or utility of the common good, so that it must be observed in conscience; and a common price, which is defined by common estimation. That price is accustomed to admit the latitude of highest, middle, and lowest price; wherefore it is perfected by a conventional price, concerning which the parties agree.
The conventional becomes the only price when the legal and common price are lacking, either because there is no common value of the thing, or because both parties, conscious of their ignorance, have wished to enter the risk concerning the true price, or because the party who was unwilling to sell the thing has added to the just price a reasonable price of affection.
Besides causes which change common estimation itself, other special causes permit things to be bought at a cheaper price when they are less useful to the buyer or are bought together in great quantity; while a greater price can be required by the seller either on account of delayed payment, or on account of greater labor, for example of selling in small quantities, or on account of a peculiar privation, about which the buyer is made more certain. The special utility of the buyer does not affect the price of itself; yet it can bring about, if it is fruitful, that the seller, with the price increased, obtains a certain partnership in gain.
Thus far concerning the price of commutation, which is paid for a thing, and must be distinguished from a price which is measured not according to the value of the thing but according to another title, such as sustenance. This price is given on account of or because of something else, yet without comparison between thing and thing. The case is had when a person performs a work socially useful which by its nature transcends the order of money. Thus the physician who procures health, the advocate and magistrate who procure justice; thus also notaries who add public faith to acts.
Their stipends are designated by the special name of honoraria, and are not to be thrust down to salary without a certain materialistic abuse. Often a legal price is established for these.
d) In selling names of private credit, one must beware lest you require a price for a title which you know to be of no value.
e) Someone can enjoy a legal monopoly so that he may increase the price in a reasonable way; but in private monopolies by various arts, the highest price otherwise just cannot be exceeded.
To monopoly, which we do not think to be natural but opportunely conceded by law, we refer the exclusive right of an author or inventor to care for the publication of a work, the construction of an invented machine, etc.; nevertheless the author has a natural right to reputation concerning his own work.
f) In auction under the spear, which of itself would have to be governed by the rules of an aleatory agreement, various arts, otherwise to be condemned, can be tolerated by custom for obtaining a greater or lesser price. Nevertheless the thing must be handed over to the buyer; the price offered must be paid: the one bidding must have the faculty and will of paying; it is unlawful to turn bidders away by fraud or fear.
Brokers are to observe the laws and usages of upright persons and to be content with a moderate wage.
VII. 1. Exchange is a bilateral contract looking to the transfer of a thing for a thing into dominion. It is consensual, if by mutual promise; real, if it is perfected only by handing over of the thing. Laws must be consulted.
- Money-changing is an exchange of monies, with some profit for the money-changer. It is distinguished as manual or small, local or trajectitious or by letters, and temporal, if present money is given for another to be paid later in the same or another place. By this reason merchants are accustomed to obtain anticipated payments, with the increase deducted. Moreover any money can be paid which is in fact accustomed to be accepted, but not money properly false, although often damage is not established.
VIII. Lease-hire, which is akin to sale, looks to the utility of a thing or of personal work to be ceded to another for a price, for a certain time. According to the various positive law it can be consensual or real.
Lease of things is distinguished, which, conceding the utility of things, follows the rules of sale, and lease of another's action, which, if it is regarded terminatively, becomes lease of work; but if in itself, is lease of services.
By lease-hire of work, a work to be completed for a certain price is undertaken by him who for that reason is called the hirer of the work. And he ought of himself, within the defined time, to complete the work for the accepted price. Nevertheless extraordinary expenses, and, as it seems, involuntary error of calculation, are to be compensated to him. - By lease-hire of services, the services themselves are leased to the hirer, who, as the minimum just price, ought of himself to pay the workman what, not hired, he would commonly gain for himself. But Providence has so ordered things that, in a time not calamitous, a strong workman, by his own work, could contribute to an ordinary family, i. e. such as would commonly exist by observing the moral laws, whence, with at least a reasonable supplement from the wife and older children and from thrift added, it would be decently supported. Therefore this wage, excepting the particular causes already noted in the contract of sale, will have to be paid as minimum, we do not say as already fully just.
Supplementary monies for those who must support numerous offspring are not owed of themselves from commutative justice. But the social necessity of protecting fathers of families can bring it about that public authority creates a true title of justice for exacting them.
All special burdens imposed on workmen must be compensated by a corresponding increase of recompense.
Today, however, the reason of some partnership is often mixed with lease-hire either of things or of services. This, in the contract of lease of services, is greatly to be desired and commended.
IX. Partnership is a contract looking to communion of a thing or work, and communion of use or especially of gain perceived from it. It is distinguished, from scope, as universal or particular; from end, as mercantile, directed to acts of business, or civil, directed to another economic utility. What is joined together for an end of a superior order often assumes another name, for example association. - The equality of justice here is defined by geometric proportion between contributions and profits. Moreover a leonine partnership is unjust and of itself null.
X. 1. Mandate is a consensual contract by which something to be done is committed to another who undertakes it. It is of itself gratuitous, and can always be revoked.
Procuration, even without a contract, gives to another the faculty of doing something for another.
Mandate neither includes nor excludes a wage on account of work to be performed.
- Management of affairs is, as it were, a presumed mandate, for doing useful work for another who is absent or impeded. By the law of nature the owner of the affair managed ought to compensate at least necessary or useful expenses. Positive laws must besides be consulted.
Ratification, by which someone approves what another has done for him, is equivalent to mandate.
XI. Deposit and sequestration. Deposit is a real contract by which something to be kept is handed over, so that it may be returned whole. It is called irregular if the depositary can consume the thing. A deposit which from circumstance the owner is compelled to make is called miserable. For this deposit, as for the deposits of travelers with innkeepers, the burden of proof is lightened. The depositary ought to abstain from illicit use of the thing deposited.
Sequestration is the deposit of a litigious thing with a custodian who is called a sequestrator. - The burden of keeping a deposit can be compensated by money.
XII. Insurance is an aleatory contract by which someone, for a certain price, obliges himself to make good to another certain fortuitous cases or cases of prevailing force.
Life insurance obliges the insurer to give, for some annual payments, a determined sum, if a definite person dies or reaches such an age, or even in either case.
In these agreements also justice requires an uncertain event, or certainly one unknown to the parties, and a just price; and one must beware of various frauds. Which are unjust must be gathered from the clauses of the contract and received usages.
On account of the multitude and uncertain person of those who have suffered damage, there is one who thinks that in general what must be paid for damage inflicted on the insuring society can be given to the poor. The Sacred Penitentiary, however, opposes this opinion.
XIII. 1. Wagering is a contract by which two or more, contending among themselves about the truth or event of some matter, mutually promise something to one another so that it may become his who has attained the truth. Justice of itself requires a doubtful event and an equal opportunity of conjecture, or compensation for inequality.
- Game is a contract by which players agree among themselves that what has been deposited in the middle shall yield to the winner. It is distinguished as aleatory, industrious, mixed. Justice requires that it be entered into freely, that equality be preserved, and that unlawful frauds be absent.
Easily, when great sums are exposed, this contract, of itself lawful, is corrupted by various vices. Open prodigality of the one exposing probably makes the game null; certainly the game of those who are unwilling to obligate themselves, or who do not have whence to pay the money, is null. Civil laws must also be attended to.
Fictitious sales and purchases in Bourses are numbered among games.
Moreover, a Bourse is a market where goods are present only by samples or by titles.
A Bourse of goods and a Bourse of securities are distinguished. Besides true business dealings, several others are at least mixed with game. Especially to be attended to are markets for a day, whether simple or under penitential earnest-money, which are called premiums (primes); and accessory contracts of sale-back, etc. To these are to be applied the norms concerning monopoly, concerning sale-back, concerning wagering and game.
XIV. 1. Transaction is a contract by which, by a mutual but onerous renunciation of the parties, a controversy concerning a doubtful right is ended. It supposes a doubtful right; and from the probability which the right had at the moment of agreement, the price must be estimated.
Contrary to an amicable composition, it carries with itself of itself no gratuitous cession of right; yet by accident it is often mixed with condonation. He alone can transact who is permitted to alienate the thing.
Compromise is an agreement by which, for preventing or ending a lawsuit, the parties commit the controversy to be settled to the judgment of one or more persons who are called arbiters or arbitrators.
To compositions must be ascribed agreements by which a debtor burdened with debt cedes his goods to creditors in order to avoid judicial pursuit, or by which a merchant, with partial payment promised, impedes bankruptcy or puts an end to it. These agreements of merchants are called concordats, and sometimes by the authority of a judge they are imposed at least on the lesser part of creditors. Ought the debtor, who afterwards enjoys prosperous affairs, to supply the remainder? This must be gathered from laws, from received morals. Of itself condonation is not presumed but must be demonstrated.
XV. Secondary contracts are pledge, hypothec, concerning which above, and suretyship, by which someone, in the place of the principal debtor, undertakes to fulfill an obligation which the latter does not fulfill. The surety is held by no greater obligation than the principal debtor. Remission made to the principal debtor frees the surety, but not conversely.