Point IV. On Invalidating Law

I. Notion. An invalidating law is one which establishes that some act is invalid or to be invalidated by a judge. Moreover, a law can invalidate an act either by rendering persons incapable of an act of this sort, or by establishing conditions or forms without which the act will be invalid.

An invalidating law differs from a law which, as it is said, merely does not assist an act, that is, which neither confirms an act, for example a contract, nor deprives it of force, but leaves it such as it is according to the natural law.

II. Division. An invalidating law is distinguished:

1. Into a law which invalidates an act ipso facto,¹ and one which decrees that the act is to be invalidated by a judge.

2. Into directive or legal, penal, and directive-penal. Directive is one which invalidates an act in favor of the common good or of certain persons; of this sort is, for example, a law which invalidates clandestine marriages, or a profession emitted before the sixteenth year of age. Penal is one which invalidates an act in vindication of fault, suppose the conferral of a benefice carried out simoniacally. Directive-penal is one which invalidates an act both in favor of the common good or of private persons, and in vindication of fault.

¹ In the case, however, the law can be passed in such a way that the act is not invalidated except after a declaratory sentence, that is, one which declares that the crime has been committed.

III. The power of passing invalidating laws is clear from the fact that simple prohibition does not suffice to prevent some acts; likewise from the fact that invalidation of acts is often necessary to avert deceptions and other inconveniences.

IV. Obligation of an invalidating law. 1. An invalidating law does not necessarily at the same time prohibit the act. Nevertheless the act can also be prohibited, either explicitly or implicitly; it is implicitly prohibited when the act is of such a nature that, once its invalidation has been posited, it is shameful to place it. Of this sort is, for example, an invalid matrimonial contract.

2. Even in the case in which the act is not prohibited, there is an obligation of undergoing those things which intrinsically arise from the invalidation; hence from an invalidated act there does not arise a right to the effects and fruits attached to a valid act.

V. Causes excusing from invalidation. "No ignorance of invalidating or incapacitating laws excuses from them, unless something else is expressly said" (can. 16, § 1). Likewise grave damage to be avoided does not prevent invalidation. The reason is that the common good requires that invalidating laws made in favor of the common good retain their force, even if the invalidation is unknown, or the act cannot be avoided without grave damage (St. Alphonsus, VI, 1079). Except the case in which the damage would be of such a sort that there would be place for epikeia (n. 143).

If, however, the invalidating law is purely penal, ignorance which excuses from fault brings it about that invalidation does not have place. In the case the condition is lacking, namely fault, which a purely penal invalidating law supposes. Hence one who inculpably did not recite the canonical hours makes the fruits his own (cf. can. 1475).