Scholion. On a Contract Void by Civil Law

I. Notion of a contract void by civil law. A contract void by civil law can be taken in a threefold sense: 1° for a contract null in the forum of conscience; 2° for a contract only civilly null; 3° for a contract null neither in the forum of conscience nor civilly, but to be annulled by the judge.

II. Power of voiding a contract. The civil legislator also can void contracts completely, so that they are null even in the forum of conscience. For he can do those things which especially conduce to the public good. But it especially conduces to the public good to void some contracts, that is, to establish certain things without the observance of which contracts valid per se are completely voided, or at least are subject to a complete voiding to be pronounced by the judge. I said, it especially conduces to the public good, and so forth, namely for providing for the security of contracts, for preventing lawsuits about value from arising, and for settling those that have arisen.

III. The manner in which contracts are voided by civil law. 1. In most kingdoms, in practice one must act as if contracts are not deprived of natural value before the sentence of the judge. The reason is that the opinion which thus, almost everywhere, interprets laws theoretically is wholly safe in practice. Nevertheless, note this: a contract void by law is already deprived of value before the sentence of the judge, even in the forum of conscience, if the contracting parties intend to consent only to that extent to which the contract is firm also in the civil forum.

2. Through the sentence of the judge, a contract is deprived even of natural value; this all theologians admit.

Corollary I. The things which have been said about contracts also hold for other acts, especially for a testament made void by law (cf. n. 822).

Corollary II. It is licit for him to whom this faculty is conceded by law, provided he has previously proceeded in good faith, to seek rescission of the contract from the judge. But it is licit for the other party to stand by the contract until it is rescinded or is foreseen that it will be rescinded. If this is foreseen with certainty, he is bound from charity, so that expenses may be avoided, to yield already before the sentence of the judge.

Corollary III. It is not licit before the sentence of the judge to use occult compensation, because the contract persists until it is rescinded.