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 But it is licit for the other party to stand by the contract until it is rescinded or is foreseen that it will be rescinded.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It is not licit before the sentence of the judge to use occult compensation, because the contract persists until it is rescinded.

617. We presuppose, from the Treatise on Laws, that there is present in the civil power the faculty of making laws concerning merely civil contracts, and also of defining conditions for their validity. Now human law can touch contracts in seven ways:

¹ Laymann, lib. I, c. 16; Carriere, n. 88-172; Bouquillon, Theol. Fundament., n. 237-240; Van Gestel, De Justitia et Lege civili, Groningen, 1896, n. 63-87; Noldin, n. 346-347.

1. Sometimes it neither prohibits nor approves them, but only attributes no force to them in the external forum; thus, in many regions, contracts from gambling are not acknowledged by law, insofar as rights arising from them cannot be vindicated before judges; then there is no difficulty: the value of the act must be defined from natural law.

2. At other times, it prohibits certain acts, but acknowledges their validity if they in fact are done; thus often brokers (courtiers) are forbidden to conduct business for themselves in those things in which they exercise their function; then likewise there is no difficulty, since the act, although illicit, is held as valid by law.

618. 3. Sometimes it is decreed that contracts are not null of themselves, but only rescindable; thus, e.g., as regards many acts of minors; then contracts are to be held as valid as long as they have not been invalidated by a judge.

4. But sometimes contracts are declared null by the law itself, yet in such a way that from the context or purpose of the law it can be understood that the act is indeed invalid in the external forum, but remains naturally valid or valid in the forum of conscience; in which case, before the sentence of the judge, he whom the contract favors can hold it as valid and use it, since it retains its force in the forum of conscience; moreover those whose interest is concerned can, with a safe conscience, use their own right and demand the nullity of the contract; and after the sentence of the judge, each party must acquiesce in this: for the public good demands that legitimate sentences of tribunals have force in conscience. - Indeed, even before the intervention of the judge, if the contract is evidently null from civil law, and one party seeks the rescission of the contract, charity demands that the other party not stand in the way of this rescission, lest useless expenses of litigation be incurred.

619. 5. Finally, law can invalidate a contract not only civilly, but also naturally, or in the forum of conscience, even before the declaratory sentence of the judge, as often as the public good demands this. - Thus commonly.

Most admit that the civil power can make such laws: for just as the Church, in religious matters, can invalidate certain contracts even before the sentence of the judge, so likewise political power, in temporal matters, can invalidate contracts in the same way, even in the forum of conscience, as often as the public good demands this: for each power proceeds from God, and is supreme in its own genus, so that it can make laws which, before the sentence of the judge, oblige in conscience.¹

¹ This can be confirmed by a recent example; the Italian law of May 1, 1866 had established that creditors were bound to accept paper money (monnaie en papier) in payment, notwithstanding any contrary pact; now the Sacred Penitentiary, having been asked whether a law of this kind had force in the forum of conscience, on January 21, 1873, responded: "regularly in the affirmative, unless particular circumstances stand in the way." (Acta S. Sedis, t. VII, p. 211.)

But the whole difficulty is in defining which civil laws oblige thus. When the legislator has clearly declared this, there is no difficulty; but today legislators do not explicitly speak of the moral obligation of laws; hence the question must be solved from the purpose of the law, common interpretation, or custom; namely, if the public good demands that the law be held as invalidating even before the intervention of the judge, immediately it must be held as invalid in conscience; such would be, e.g., an agreement by which children would make a pact with parents about not giving support, or a contract concerning the furnishing of an illicit thing. - Otherwise, a contract can be held as naturally valid before the sentence of the judge; for an act valid by natural law ought not to be held as null, unless it is morally certain concerning its nullity.

6. Today by some jurists not only null and rescindable contracts are acknowledged, but also non-existent ones,¹ namely those which lack one of the elements absolutely necessary for validity, e.g., free consent; these are null, even in the forum of conscience, before the sentence of the judge. - Yet if the matter is doubtful, the declaratory sentence of the judge can be awaited.

¹ Planiol, I, n. 345.

7. Contracts entered into in fraud of the law are affected by that nullity which the violated law decrees, by reason of the public good.

470. Contract effects a) in the debtor a twofold obligation:

1. directly, of executing the contract or furnishing that concerning which agreement was made;

2. indirectly, of compensating the damages following from non-execution of the pact;

b) in the creditor, a right corresponding to each obligation, namely, of exacting what is owed to him.

Furthermore each obligation, just as also the corresponding right in the other, can be 1) merely natural, which binds from the very nature of the contract but only in conscience, and gives no action in the external forum, as is the debt to be paid which cannot be juridically proved; 2) merely civil, which arises from civil law and produces an action in the civil forum, but does not oblige in conscience, as if someone is erroneously condemned to a fine and there is no way available for proving inculpability; 3) mixed, which obliges in each forum: and this can arise even from just civil law alone.

471. The direct effect is an obligation from commutative justice of giving, doing, or omitting something. Namely, a valid contract:

1. produces a true obligation in conscience, because the intention of obligating oneself is of the essence of contract, and this has itself after the manner of a particular law with respect to the contracting parties themselves (a. 1134);

2. produces an obligation which according to nature and extension depends upon the intention of the contracting parties, and therefore contracts are to be fulfilled in good faith (a. 1134), and oblige not only to those things which are formally expressed in them, but to those things which were in the explicit or implicit intention of the contracting parties, as is gathered from the words employed, from the character and dispositions of the persons, from the custom of places or civil laws, and to all things which, the nature of the contract being attended to, equity, law, or usage demand¹ (a. 1135);

¹ Rules of interpretation are handed down, a. 1156-1164.

3. does not have obligatory force except between the contracting parties themselves and those who hold their place, for example, heirs or mandators and creditors; hence they can profit or harm no one else (a. 1165-1166): for no one incurs an obligation or a benefit from the pact of another, unless he has consented;

4. obliges, if it is rescindable, until he who has the right petitions rescission.

But it becomes definitively firm a) if within the time defined beforehand by law he has not petitioned rescission; b) if he has renounced the right of petitioning rescission, while rescission is conceded only for his private good. For if it is also conceded because of the public good, he cannot renounce his right: thus a minor cannot renounce it when he would be induced to renounce his right by the other contracting party, because the public good demands that perverse men not have so easy a means of excluding imprudent young men from the benefit of rescission.

In species a) the obligation of giving embraces two things: the obligation of handing over the thing (a. 1136), and of preserving the thing and watching over its conservation as befits a good father of a family (a. 1137);

b) an obligation of doing not fulfilled imports compensation to be furnished for all damages coming from it to the other (a. 1142). But if one did not wish to do it and the other was able, this other can do it at the expense of the first, with compensation also petitioned for the delay employed (a. 1143-1144);

c) likewise an obligation concerning a thing not to be done: if, notwithstanding the contract, it has been done, the other can destroy the work at the expense of the first (a. 1143) and exact compensation for damages (a. 1145).

472. The indirect effect is the obligation of compensating damage coming from a contract not observed. But violation of a contract can occur from moral fault, from merely juridical fault, and from a fortuitous case. Now:

1. if there is fully deliberate moral fault, there is present an obligation of compensating the damage following from it, because there is damaging truly, efficaciously, and formally unjust;

2. if there is merely juridical fault, at least there is present the obligation of compensating after the sentence of a judge, or even at the petition of the injured party;

3. in a fortuitous case, no obligation is given of compensating damage (a. 1148). There is an exception a) if the debtor has taken fortuitous cases upon himself; b) if he is in fault as to why the thing was impeded by a fortuitous case; c) if he was culpably in delay, unless however the thing would likewise have perished with the creditor (a. 1302).

The debtor is constituted in culpable delay 1) at the moment when he does something which from the contract was not to be done; 2) when he does not do in useful time what was then to be done; 3) when he does not do it at the time determined by agreement, i.e., if he does it before the time fixed beforehand for beginning or after the time fixed beforehand for finishing; 4) when the law recognizes that delay is incurred by full right; 5) when the debtor has been juridically or legally summoned.

The quantity of compensation to be furnished is that which was determined in the agreement (a. 1152), unless it is modified by the judge (a. 1231-1232). But if none was determined, it will have to be estimated according to natural equity (a. 1149), and indeed so that, if deceit is absent, damages foreseen or which are presumed to have been foreseen are to be compensated (a. 1150); conversely, if there was deceit, foreseen damages and those which immediately follow from the contract not fulfilled are to be compensated (a. 1151). Yet if the matter of the contract is money to be paid, the compensation generally cannot exceed the rate of legal interest (a. 1153).

499. Prohibited modes of donating are interposition, substitution, and an illicit condition.

I. Interposition (schijnoverdracht, tusschenerfstelling) is that prohibited interposition by which a donation is made to a capable person, with the obligation of handing over the thing to a person who is legally incapable of receiving, so that the donation is made in fraud of the law.

Interposition must generally be proved by him who impugns the validity of the donation, by showing that at least a tacit pact had been entered into, by which the donee obligated himself to hand over the thing to the incapable person, or that the donor ordered this: for it is not enough that he manifested a mere desire, because a desire does not induce an obligation. Yet the law sometimes presumes interposition in certain persons: thus the father and mother, descendants, and spouse of an incapable person are presumed to be interposed (a. 911); which presumption is of law and from law, so that proof to the contrary is not admitted.

II. Substitution (onderschuiving, ondererfstelling) is a disposition by which the donor designates a double person: one who is to receive the gifts or legacies immediately, another who is to receive them in default of the former or after him. Now substitution is twofold:

1. Improperly so called, direct, or vulgar substitution (gewone, rechtstreeksche, aangeduide) designates the person who will obtain the gift or legacy if the donee or legatee does not wish or is not able to obtain it; for example, I give a house to Peter, but in his default to Paul. This is nothing but a conditioned donation, which is valid (a. 898).

2. Substitution properly so called, indirect, or fideicommissary (vertrouwde), hands over the dominion of a thing (not the usufruct) to another, with the burden of preserving the donated thing for a certain time or until death, and afterward of transmitting it gratuitously to a third party; hence the other is called the burdened party or fiduciary, but the third is called the fideicommissary or the one called. This, in present-day law, out of hostility to mortmain, or also to the stability of goods among nobles, is wont to be prohibited as harmful to the equality of citizens, to the free transfer of goods, and to agriculture, and indeed generally in such a way that not only the substitution, but the donation itself, is annulled; and therefore the fiduciary can neither retain the donated goods for himself nor hand them over to another. This law does not seem certainly unjust. Thus in French and Belgian law (a. 896 and 899), and Dutch law (a. 926). - By Italian (a. 899-900) and Lusitanian law (a. 1869), the principal disposition remains, but the substitution is annulled.

Yet a twofold substitution is permitted by civil law, even French law, lest prodigals dissipate goods bequeathed to them: a) father and mother can give goods of which they have free disposition to one or several of their children with the burden of rendering them to all children born or to be born from them, without any distinction, and in the first degree only; b) those who have no descendants can leave goods of which they can freely dispose to brothers or sisters with the burden of rendering them to all children born or to be born from them, and in the first degree only (a. 1048-1051).

III. An impossible or illicit condition annexed to a donation or testament, although it is illicitly added, nevertheless does not invalidate it unless, by a predominant will, the donor wishes the donation to depend on the condition. Whence it generally does not render the act invalid; but (unlike an onerous contract) the condition is held as not written, so that the donee is not bound to fulfill it (a. 900). Nevertheless the donation would be invalid if the illicit condition were the true and sole cause of the contract, because then consent would be bound to such a condition and would truly depend upon it (a. 1131 and 1172).

Thus French and Belgian law. By Italian law, those conditions in a testament or legacy are held as not written (a. 849), but they invalidate a donation (a. 1065); by Swiss law, illicit conditions invalidate a legacy, the others are held as not written (a. 482); by Austrian law, a legacy under a suspensive impossible or illicit condition is null, but if it is a resolutory condition, it is held as not written (a. 698); by German law, an impossible mode invalidates a legacy only when it is clear that the liberality would not have existed without such a burden (a. 2195).

500. On the force of prohibitions of civil law, the same thing must be said as we said about the force of informal testaments (n. 493). - When there is question of pious causes, Canon Law has force, in which substitution is not prohibited; for example, Peter bequeaths his house to John under the condition that John leave it after death to the parish church.

What therefore if, at the petition of the heir, that donation is annulled by a civil judge and the house is handed over to the heir? R.: The heir will not be bound to leave the house to John, because under this respect there is question of a profane cause; but he must take care that the parish church receive that which was established by the testament of Peter, because under this respect it is a pious cause. Therefore the heir can, while John is living, retain the house, provided that he takes care that after his own death the house be handed over to the pious cause, or, if this is impossible or dangerous, that an equivalent thing be handed over.

I say. Contracts void by whatever law are not made firm by oath; but valid and licit contracts are made firm. - The reason for the first is that an oath follows the nature of the act; and the reason for the second, because then there comes to it a bond from the virtue of religion.

THE first opinion is that the will of the testator is to be executed, and consequently that the heir, though invalid by civil law, can in conscience take possession of the inheritance. So Innoc. in cap. sicut de elect. and in cap. celebrata de cler. excom. Abbas in cap. Quae plerique, de immun. Eccl. Iason. in l. Nemo potest, de legatis, where it is had expressly from c. ultima voluntas, 13. quaest. 2. deduced from the Decretals of D. Gregory Pope there: The last will of the deceased ought to be preserved in every way. Which the Doctors understand of testaments of this kind. So also Bartholus in Minor. l. 1. cap. 3. ad l. Nemo potest, ff. de legatis 1. and other Jurists, as in Couar. in cap. cum esses, de testam. Fagundium de contr. l. 6. cap. 7. Sotus l. 4. de iust. quaest. 5. art. 3. Medin. de rebus restituat. quaest. 23. Adrian. quodl. 6. Molina T. 1. de iust. disp. 81. Less. l. 2. cap. 19. dub. 3. Sylvest. v. haered. quaest. 7. Reginald. l. 25. num. 105. Bassaeus v. Haeres.

THE NEGATIVE, on the contrary, is upheld by Cevallos l. 2. contr. com. quaest. 71. Bald. in l. 1. num. 55. C. de Sacros. Eccles. Couar. in cap. cum esses de testam. de Gomez in l. 3. Tauri, num. 121. Spino in speculo testam. gloss. 8. Cenedo 2. p. collect. 67. ad Decretal. Menchaca de success. creat. §. 2. Gutierrez l. 2. qq. Canonic. cap. 5. Cervant in l. 3. Tauri, num. 189. Ledesm. 2. 4. quaest. 18. art. 1. dub. 12. Victoria 2. 2. de restitut. initio, Sotus l. 4. de iust. quaest. 5. art. 3.

THESE, however, are divided; for Sotus, Victoria, and others in Couar. hold that the civil laws concede to the successor ab intestato restitution in the external forum, and retention in the internal, not the translation of dominion to him, but to prevent its being transferred. Others, however, concede even this, with whom subscribe Malderus, Salas, Becanus, Vasquez, Bonacina, and others, as in Diana p. 1. tract. 8. resol. 75.

THIS seems to be the opinion of D. Bonav. in 2. dist. 44. art. 2. et 3. and in 4. dist. 18. D. Thom. 1. 2. quaest. 62. art. 4. and of as many as assert that the laws of Princes oblige also in the forum of the pole, whom I cited in tract. de Legibus, disp. 5. quaest. 1. et 2.

THIS grave decision is extended to all civil contracts, so that those who are void by civil law are such also in the forum of conscience.

MANY, however, follow a middle way, that if the will of the testator be fully established, the heir instituted in a less solemn testament can retain the inheritance. This common opinion Fagund. strengthens num. 6. with Couar. ad cap. cum esses, de testam. and with the authors of the first opinion they bring forward others.

THEY SAY second, that if the heir ab intestato reasonably opine, or doubt, that some fraud has been introduced into that testament, he can justly act for its rescission; Fagund. agrees num. 12. with many in Couar. loc. cit.

I ASSERT with the second opinion that it is probable that the Heir ab intestato can rescind a testament in which another is instituted without solemnity, and that in the meantime the inheritance cannot safely be taken possession of by one so instituted.

IT IS PROVED first: The laws of Princes, being just, oblige in the forum of the pole; but the Laws decree that heirs instituted without solemnity are excluded, l. hac consultissima, Cod. de testam. and Instit. Quibus modis testamenta infirmentur, §. penult. and these are received throughout the whole world, as just, and most gravely necessary for the public good, lest the resources of the dying be squandered by frauds: Therefore. The major is broadly demonstrated in l. c. de Legibus.

IT IS PROVED second from other laws which so dispose, and void in order to avoid frauds, nor do they lack effect even with the fraud removed, as in the alienation of pupils, etc., which therefore is null also in the forum of conscience.

I ASSERT second. If the will of the testator be rightly established in the forum of conscience, the heir can safely in conscience take possession of the inheritance. This is D. Bonaventure's, as I shall show.

IT IS PROVED first. The laws of Princes are just, and oblige in conscience, which are consonant with the law of nature, and much more if they are thus interpreted by the Legislator: But it is of the law of nature that inheritances be of those to whom the legitimate owners justly leave them, and to this sense even the civil laws come: Therefore. The major is evident, from what was said de Legibus, disp. 1. quaest. 4. and disp. 2. quaest. 6. The minor is shown from both Laws, the Canonical, and the CIVIL.

And indeed Pope Innocent in cap. quod sicut, and in C. quia propter, de elect. thus decrees: If any election be valid by the law of nature and of nations, even though the solemnities required by civil or canon law be lacking, it is valid in the forum of the pole, because the solemnities of positive law were invented only to avoid frauds, and in the forum of conscience natural truth is to be preferred. But this is consonant with the law of nature, that the transmission of inheritances be taken from the will of the Lord: it is proved in the Institution de rerum divis. §. per traditionem; where it is said: Nothing is so conformable to natural equity as that the will of the owner, willing to transfer his thing to another, be held valid.

THAT the civil laws themselves thus unfold in the forum of the soul is proved from Authent. de nuptiis, §. disponat. collat. 4. where it is related that the last will of the deceased is to be preserved as law. And in C. ultima voluntas, causa 13. quaest. 2. these words are had: The last will of the deceased ought to be preserved in every way. But more formal is the text in leg. inutiliter, Cod. de fideicommiss. where, when the Emperor had said that in a less solemn testament a fideicommissum left is uselessly left, namely that for exacting it no action be granted in a judicial forum, he adds: If the heirs, having discovered the will of the deceased, had performed it, it cannot thereafter be reclaimed. The Emperor gives the reason, Because satisfaction seems to have been made to the will of the deceased not from the writing alone, but from the conscience of the fideicommissum left. It is confirmed by the consensus of Jurists saying that a less solemn testament has such force that the legacies left in it can not only be possessed in the forum of conscience by a legatee in possession, but be defended in a judicial forum by a legitimate exception: so Bartol. ad leg. Nemo potest, ff. de legatis, and others, as is clear from Gamma decis. 347. and Claro §. Testamentum quaest. 90.

If they say that this text proceeds concerning legates, and fideicommissa, not concerning heirs.

I say that it is commonly conceded concerning these also by Jurists and Theologians, as we have seen.

Hence I argue a fortiori from D. Bonav. Laws are to be kept from conscience the more gravely, the graver are the things commanded: But the laws yield to the last will in conscience, that last wills be fulfilled, interpreting the legacies, etc.; therefore much more as regards inheritances. For these are much graver, and it would be much more grave and hard for the testator to see the inheritance distraught, against his will, than a legacy. Therefore by the instinct of nature no one, even of timid conscience, will wish to restore the inheritance conferred on him by a testator, even if less solemnly.

Therefore from the observance of the laws, enjoined on us in the forum of conscience according to the mind of the Legislators, it is brought out that the SS. Doctors are for the first opinion, not for the second, as Fagund. thinks num. 3. nay, that they agree with the third.

From what has been said for the second assertion the response to the arguments of the first is clear: For laws are to be interpreted, and observed with great wisdom, discretion, and spirit; for so they are enjoined by God and the Apostles for the good of the Republic, for justice, and peace, and therefore the rectitude of nature is to be kept, as also justice, etc., as the S. Doct. de Eccles. Hierar. p. 2. cap. 3. discusses.

A certain priest proposed the following cases to be solved:

I. Adalbert secretly introduced an enormous quantity of merchandise without paying the customs duties owed upon it, with the help of a certain Thomas, to whom he had already given fifty pounds for his labor and had promised to add fifty when the work was completed. Nevertheless, he did not stand by his promises, having heard that such a contract, inasmuch as it concerned unlawful matter, had been invalid from the beginning.

II. The same man had seduced a girl, seeking her consent to sin as a condition for contracting marriage afterward. But when he again did not stand by his promises, he was summoned by her to court and was punished with a fine of £1000 for breach of promise, which, lest he be compelled to pay it, he went away into another country. Hence it is asked:

1. What is the obligation of municipal law in England?

2. When our municipal law invalidates a contract, is the contract invalid in conscience?

3. Does a base contract bind, and in what manner?

4. Let the proposed cases be resolved.

1. What is the obligation of municipal law in England? Where English law applies or determines natural law, it binds the conscience under pain of sin. A merely positive law in England is probably penal and binds the conscience only to submit to the penalty if it is imposed by competent authority.¹

1 Manual of Moral Theology, vol. i, p. 125.

2. When our municipal law voids a contract, is the contract void in conscience?

Not at once and immediately; if it is valid by the law of nature, it remains valid unless some one moves to take advantage of the voiding law and set the contract aside.²

2 The same work, pp. 128, 478.

3. Does an immoral contract bind, and in what manner?

A contract to do something which is morally wrong is null and void in itself before the bad action agreed upon is done, as there can not be an obligation to do wrong. After the bad action has been done by one party, many theologians hold that the other party to the contract is bound to fulfil his promise, not by reason of the original contract, but because of a new contract, facio ut des, concluded in the very doing of the action. Others deny this, and hold that an immoral contract is and remains invalid.³

3 The same work, p. 488.

4. The cases. The contract which Albert made with Thomas was against positive law, but not necessarily immoral. It was therefore a valid contract and obligatory in conscience. Albert is therefore bound to pay the second fifty pounds to Thomas.

This same Albert seduced a woman by making her a promise of marriage. As he did not fulfil his promise the woman brought an action against him in court and obtained £1000 damages. Albert fled the country to avoid payment. Apart from the question whether the promise of marriage was valid or not, Albert did the woman an injury, for which he is bound to make compensation as far as possible. The court condemns him to pay £1000 damages for the injury, and he is bound in consequence to submit and to pay the sum. His flying from the country will not excuse him.