Point III. On the Letting of a Work, or on the Contract of Rendering a Work

I. Notion. The contract of rendering a work is a contract by which one party, the locator, lets some work to someone for a certain price, and the other party, the undertaker, obliges himself to complete the work for the assigned price. Therefore the object of this contract is the work itself.

II. Obligations of the undertaker. The undertaker is bound to render the work undertaken, and indeed according to the agreed description both of form and of material, and at the established time. Yet if they agreed about the best material, for example about using the best wood, etc., by usage truly good material is understood.

Question 1. Can those competing to complete a work either agree among themselves that each one increase the price which he was going to ask by a certain sum, which is to be divided among the others by him to whom the work is adjudged; or by common counsel establish the price and then by lot or some other way designate the undertaker who, once the work has been adjudged to him, will divide a certain part of the price among the others?

Response. A way of acting of this kind is not opposed to justice, if the price, with the addition to be divided added, does not exceed the highest price (p. 601). But per se they sin against charity, because by conspiring they prevent the locator from letting the work at a lower price (n. 903). Yet in the case a reason is not lacking by which, per accidens, a conspiracy of undertakers of this kind can seem also to be excused from sin against charity. For undertakers must make many expenses and spend much labor in order to compete in this way; all of which are done in vain if, as generally happens, the work is not adjudged to them. Therefore for these expenses and labor they can keep themselves indemnified by agreeing among themselves about increasing the price within just limits.

Question 2. Is the locator bound to increase the price, if the one who undertook the work for a determined price afterward rightly contends that the work cannot be completed for that price, for example because the price of the material to be used or the wage of the workers has increased, or because he erred in computing expenses or in making the reckoning?

Response. It is disputed; but, except in an altogether fortuitous case, the locator does not seem to be held to supplement, although equity suggests it. The reason is that the undertaker is judged to undertake the work at almost his sole risk, or to include in the contract all cases which can be foreseen or feared - such as an increased wage of workers, increased prices of things - or can be guarded against, such as an error in computing expenses. Only those cases are excepted which can neither be foreseen nor guarded against, such as an earthquake which overturns the building.

Objection. In the case the just price is lacking.

Response. I deny it, because the contract about which there is discussion also has the character of an aleatory contract, and indeed with respect to the cases about which the question speaks, and which on that account are judged to be included in the contract. But altogether fortuitous cases are not judged to be included in the contract.