Capacity of the parties

By the law of nature, all persons who have the full use of reason are capable of entering into contracts. On the other hand, children who have not yet attained the full use of reason, persons of unsound mind, and those who are drunk, cannot make valid contracts. We must, however, take into account the provisions of positive law which affect contractual capacity.

Religious who are professed to solemn vows, and are consequently incapable of holding property personally, cannot personally acquire property rights or liabilities under contract. Religious who are under simple vows are capable of holding property, and they can make valid contracts with reference to it; but they do not act lawfully without the permission of their superiors. In other matters, also, religious are dependent on the will of their superiors, and cannot lawfully undertake contractual obligations without their permission, If they do so, the contracts may be avoided by the superior, except as regards the acquired rights of third parties (Can. 536).

A married woman is now, by the Married Women’s Property Acts, 1882 and 1893, in the same position as a single woman as regards the acquisition and disposal of property, and the acquisition of rights and liabilities in contracts. Still, she is not personally liable in respect of contract nor for fraud committed in connection with contract. Her liability can only be enforced against her property. She cannot be made a bankrupt unless she is carrying on a trade apart from her husband.¹

¹ Digest of English Civil Law, n. 71.

A minor can enter into a binding contract which is for his advantage, as, for example, an apprenticeship; he can also make a valid contract to pay a reasonable price for necessaries, or for goods and services which are suitable to his position and which are actually required for his reasonable comfort. Other contracts entered into by minors are void in law and voidable in conscience, and no ratification of them after full age has been attained is enforceable, whether there be a new consideration for them or not. Of course, a minor cannot abuse the privilege which the law gives him in order to cheat and defraud others; if he has obtained a benefit even by contracts which are void by English law, he must pay a just price for it, and even English law will not enable him to recover money paid by him under such contracts if he has received benefit under them.

Convicts under sentence of death, or undergoing penal servitude for crime committed, have no legal capacity, and cannot enter into a contract which English law will recognize. Any property belonging to such a convict is administered in accordance with the provisions of the Forfeiture Act, 1870, by an administrator appointed by the court.

The unilateral acts of a person of unsound mind are by English law void, unless they were done during a lucid interval.

His contracts other than marriage are valid, unless it can be shown that the other party to the transaction was aware of the unsoundness of mind. In that case they are voidable at the option of the person of unsound mind or his representatives. The same rules hold good of the contracts of drunkards in English law.

Corporations or artificial persons are per se capable of entering into contracts through their agents in much the same way as natural persons. Those, however, that are created under the authority of English law by statute, or are formed under general statutes such as the Companies Acts, for definite purposes, are held incapable of binding themselves for objects clearly beyond those purposes as declared in the company’s constitution,” ¹ Encyclopedia of Laws, s.v. Contract.

¹ Digest of English Civil Law, n. 54.

I. Persons capable or incapable. Capable of contracting are all who enjoy the full use of reason, unless they are excluded by ecclesiastical or civil law. The reason is that the full use of reason suffices for giving consent, by which a contract is constituted. Which persons are excluded by ecclesiastical law, canonists teach; which by civil law, see in the civil Code.

II. Consequences of incapacity. Contracts entered into by one civilly incapable are commonly made void in this sense, that they can be rescinded by the judge in a case in which rescission is legitimately sought. Civil law should teach who can seek rescission.

Corollary I. Incapable persons - and others who can seek rescission - if they have acted in good faith, licitly seek rescission of the contract. Nevertheless, it is not equitable that rescission of the contract be sought if there is question of contracts which commonly are entered into with an incapable person even by prudent and upright persons. The aforesaid can likewise use an exception, that is, deny execution of the contract; nor does the natural validity of the contract stand against this assertion, because no one is bound to furnish what he can immediately recover by petitioning the judge for rescission of the contract. If they have acted in bad faith - for example if the incapable person pretended himself capable, or contracted with the intention of later seeking rescission of the contract with damage to the other - they are bound at least to repair the injury inflicted on the other.

Corollary II. One who has contracted with an incapable person can stand by the contract until the right of the incapable person is legitimately urged.

761. • I. By natural right, all and only those who have free use of reason can contract, because these alone can transfer dominion of their goods and undertake obligations. Hence the following cannot contract: 1. infants not yet having the use of reason; 2. the insane and the furious; 3. the perfectly drunk.

II. By positive law, besides the use of reason and the free will of contracting which are exacted by natural law, it is also required that the contracting party have free disposition of goods, and not be declared by law incapable of making a contract. But those incapable of contracting, at least in many things, or firmly, are: 1. minors; 2. wives; 3. the civilly dead; 4. interdicted persons and prodigals. A few things concerning each.

762. • Minors are called those who have not reached the age fixed beforehand by law, so that, the authority of the father, or of a tutor or curator, being excluded, they may be able to act civilly. In Roman Law sons are minors up to the age of 25, and daughters of 21 years ¹. But in Gallic Law sons under paternal power of both sexes are minors until they have completed the age of 21 years. Nevertheless, with respect to contracting marriage, men who have parents or ascendants are not reputed majors unless they have arrived at the age of 25 years.

¹ The old Roman law assigns the twenty-fifth year indiscriminately both for males and for females as the year after the completion of which one ceased to be a minor; but the recent law published under Gregory XVI defines the twenty-first year indiscriminately for both sexes. Nevertheless, from the old law, leave of age granted to females is found two years earlier than to males.

1. Some minors are not emancipated, but others are emancipated. The former are simply subject to the authority of the father or tutor. But the latter are those who have been freed from the aforesaid authority by the benefit of emancipation according to the forms prescribed by law. In Roman Law and in Canon Law, some minors are puberes, and others impuberes. Boys who have reached the age of 14 and girls of 12 years are called puberes. The rest are called impuberes. Impuberes deprived of a father and placed under the authority of a tutor come under the name of pupilli. From the same Roman Law, a tutor is given to pupilli for all things, but a curator is given to puberes for the administration of goods only. With these things set down,

763. • 1. A filiusfamilias who is impubes, even if he contracts with the consent of the father and concerning castrensian goods, is not obliged; on the contrary, if a pubes son contracts concerning castrensian and quasi-castrensian goods, he is obliged, provided it is not a question of alienating immovables or precious movables; but he can by no means dispose concerning profectitious and adventitious goods, because regularly he does not have their administration.

2. A pupillus, or impubes deprived of a father, with the authority of the tutor, but a minor with the consent of the curator, contract validly, unless it is a question of immovables or precious movables, for which a decree of the judge is required ².

² Nevertheless a pupillus can, for his own advantage, oblige another to himself (e.g. by accepting a donation), even without the authority of the tutor, as is clear from sect. Pupillus, Instit. De inutil. stipul. - Lugo, De Iust., disp. 22, n. 283.

764. • 1. A non-emancipated minor cannot contract firmly without the assistance of the tutor. Nevertheless, if a contract is made in such a way, it will be valid of itself, but rescindable, unless it favors the minor. Hence, if from a contract of this kind lesion follows, the minor is admitted to the benefit of restitution; otherwise, if no lesion has followed. Hence the axiom: A minor is restored, not as a minor, but as injured.

2. An emancipated minor is able to make all acts of administration determined by law. But for the rest the assistance of the curator is required.

Restitution has no place: 1. if the minor by fraud, but not if by mere affirmation, persuaded another that he was of age; 2. if the lesion comes from a fortuitous and unforeseen event; 3. if the obligation arises from a delict or quasi-delict; 4. if, while exercising commerce or an art, he contracted for matters of his commerce or art; 5. in certain other cases excepted by law (Arts. 450..., 476..., 1304 and following).

765. You will resolve. - 1. A minor can in safe conscience use the benefit of the law, the case of bad faith being excluded, since the law was enacted in his favor. Nevertheless he cannot seek rescission in order to be exempted from restitution of the money which he received as a loan and squandered, although he derived no profit from it; for he is bound to fulfill the obligation which he certainly knew when he was asking for and receiving the money. From another side, it must be attributed to his own fault if he perceived no advantage from it. - Pothier (Traite des obligations, n. 52), with whom Toullier agrees together with other jurists, and Gousset (n. 747).

2. He who contracted with a minor can stand by the contract until the nullity is invoked by the minor, or by his father or tutor. Nevertheless a private petition suffices for him to be held to rescission when the lesion is altogether open.

3. The minor alone, both by himself and through others by whom he is represented, can seek rescission of the contract; hence those who contracted with him cannot oppose his incapacity (Art. 1125).

4. A minor can no longer impugn an act performed during minority when, having already been made major, he has ratified it; because he was fully able to contract when he ratified the act (Art. 1311). - See Cases, n. 770 and following.

770. • Those are called civilly dead who have been condemned to death, to perpetual galleys, or to deportation. But these are the chief effects of civil death: 1. to lose the property of goods, which pass to the heirs, without the testament being valid, if they have made any; 2. not to be able to receive an inheritance or donations, except that which is destined for their support; 3. not to be able to donate goods which they have acquired, whether among the living or by testament. - These things generally seem to have effect in the forum of conscience. Nevertheless, according to the common interpretation, the civilly dead are not prohibited from receiving any manual donations whatsoever. For they are incapable only for those things which are determined by law; hence they validly enter most contracts, and are not incapable of conducting commerce. - Thus Roman Law.

771. • Interdicted persons are those who by sentence of the judge are declared incapable of exercising civil acts because of a state of weakness, or dementia, or madness. Moreover, someone is designated for them as tutor, and all their acts are void by law; nevertheless they are not to be esteemed absolutely null before the sentence of the judge. Interdiction ceases when the cause ceases; the cessation of which must be declared by the judge, so that the interdicted person may again be able to act civilly. Prodigals juridically denounced are incapable of entering certain contracts determined by law, without the assistance of a counselor constituted by the judge.

Moreover, the nullity of contracts entered by interdicted persons and prodigals can indeed be opposed by them or by those conducting their cause, but not by those who contracted with them, just as was said concerning minors.

651. I. By natural law all and only those can validly contract who enjoy the use of reason sufficient for understanding the obligation which they undertake: for for a valid contract on the part of the subject nothing else is required except free consent by which dominion can be transferred and an obligation undertaken.

¹ Lugo, disp. XXII, n. 280-303; Salmanticenses, Tr. XIV, De Contractibus, cap. I, n. 32-48; Haunoldus, Tr. VIII, cap. 3; Billuart, diss. I, art. 5; Beusch, cap. III, n. 21-226; Carriere, n. 174-203; Marres, l. III, n. 104-134.

Therefore by natural law the following are altogether incapable of contracting: (a) infants and children who have not yet attained the use of reason, but not those below puberty who already enjoy sufficient use of reason; (b) the perpetually insane; (c) the drunk and the furious at the time when they are not masters of their mind. - Less capable of contracting are the half-witted, and others who enjoy some, but not full, use of reason; and therefore it is altogether fitting that these should not be able to contract without a tutor or curator, who may furnish them counsel and help.

II. By civil law, prevailing among various Nations, all those can contract who are not prohibited by law. Now by positive law the power of contracting is limited for minors, interdicted persons, and wives, and indeed in a diverse way, according to diverse Nations.

652. For France, these things especially are to be noted: -

1. On Minors. These are those who have not completed the twenty-first year of age; they can be held in a threefold state: under paternal power, - under tutorship, - under curatorship.

(A) They are situated under paternal power when they are orphaned neither of father nor of mother, nor moreover are emancipated. - If they have their own goods, the father has the administration of them, and indeed the usufruct up to the eighteenth year of age (above, n. 146). - As regards contracts to be entered, they can furnish that which minors under tutorship can, with a few exceptions.

653. (B) Minors not yet emancipated, who are orphaned of at least one parent, are constituted under tutorship. - Tutorship is called: (a) legal, when by the law itself it is deferred to the father, the mother having died, - or to the mother, the father having died, - or to ascendants, both parents having died; (b) testamentary, which by the surviving father or mother, legitimately enjoying paternal authority, is deferred to someone to be exercised after the death of the one deferring; (c) dative, or nominative, which is deferred to someone by the family council, legal or testamentary tutorship being lacking.

Now minors cannot contract in their own name, but in all pacts are subject to the tutor, who acts in their name and administers their goods as a good father of a family. But the tutor can complete acts of mere administration alone; but acts of greater moment, only with the concurrence of the family council or tribunal added; indeed he is altogether prohibited from carrying out certain acts, as is explained more fully in the Supplement, p. 95* sq.

Acts entered by minors with all legal forms are valid and firm. But when forms of this kind are lacking, a distinction must be made: if common forms have been neglected, as is, e.g., the assistance of the tutor, the acts are rescindable, provided it is established that the minor was injured; if special forms were neglected, as is the consent of the family council, the acts are rescindable at the option of the minor and those having his cause, but not of the other party, even independently from injury; ten years are granted for seeking rescission.¹

¹ Cod. civ., art. 466, 1309, 1314; Planiol, II, n. 1081-1088.

654. (C) Emancipated minors are constituted under curatorship: this emancipation indeed is called tacit, or legal, when it happens by the law itself through marriage; and express, when it happens by a juridical act, with the explicit consent of the surviving father or mother, or of the family council.²

² Cod. civ., art. 476-479, in Supplement., p. 100*.

Emancipated minors indeed act in their own name, and can enter certain contracts of mere administration; but in matters of greater moment, they need the assistance of the curator, family council, or judge, according to the various prescriptions of civil law.³ - But if, with the consent of parents or of the family council, they undertake the office of merchant, they alone can carry out all things which pertain to the business, if the alienation of immovable things is excepted.

³ Cod. civ., art. 481-484; 840; 935.

655. 2. On interdicted persons.⁴ When adults, on account of weakness of mind or habitual dementia, are incapable of managing their goods, they can be interdicted by the authority of the judge: then they are constituted under a tutor, and contracts which they enter without the intervention of the tutor are rescindable, insofar as rescission of them can be sought, for ten years, by the interdicted persons themselves or their heirs. - But acts carried out before the judgment of interdiction can be invalidated if the cause of interdiction was already notorious at the time of the contract entered.

⁴ Cod. civ., art. 489-512, in Supplement., p. 101*; Planiol, II, n. 1090.

Those akin to interdicted persons are those to whom a judicial council has been juridically given, namely prodigals and the half-witted, who cannot prudently manage their goods. For these cannot litigate, transact, borrow money, accept movable goods, alienate their goods, or subject them to mortgages, without the assistance of the aforesaid council; and if nevertheless they furnish this, their contracts are rescindable. But other contracts entered by them cannot be rescinded.¹

¹ Cod. civ., art. 513-515, Supplement., p. 104*; Planiol, I, n. 2684-2725.

656. 3. On wives.² Wives who are still under the power of a husband cannot enter certain contracts without the special consent of the husband, or the authority of the judge; thus they cannot donate their goods among the living, alienate, grant a mortgage, or accept donations and successions. - Yet if they publicly exercise commerce, with the husband consenting, they can enter contracts which pertain to their commerce; even outside this case, they can be obligated by reason of delict or quasi-delict, - or by reason of domestic expenses, because, unless the contrary is established, the husband is judged to consent to these expenses. - Besides, under the dotal regime, the wife has the administration of her paraphernal goods (art. 1576), although she cannot alienate immovable goods (art. 1449-1538). - Finally, if the wife is separated from bed from her husband, she can now freely dispose of her goods, with dotal goods excepted.

² Cod. civ., art. 215-226; Planiol, III, 254-326.

Contracts entered by a wife against these provisions of law are rescindable at the option of the husband, of the wife herself, and of their heirs, for ten years; unless however they have been confirmed by the wife, with the husband consenting. - The Law of July 1907 concerning the salary of wives must be kept before the eyes.³

³ You will find the text of the law in Suppl., p. 224a*.

657. 4. On moral persons, or societies which have obtained juridical capacity, there are various provisions of civil law, which often restrict too much their faculty of contracting. In a general way, since they do not exist except by force of civil authority, they can do nothing except what is permitted to them by concession of the law. - Now those societies which are called etablissements publics or etablissements d'utilite publique are constituted under the tutelage of the Government, especially as regards the acceptance of donations or legacies, as if they were minors.⁴ - But private societies which are acknowledged by the Government, as civil or commercial societies, or guilds of workers, enjoy greater liberty in the administration of their goods.

⁴ A. Hudelot, Des obligations, Paris, 1908, n. 104-129.

658. III. Moral principles concerning contracts of minors, wives, and interdicted persons. The question is whether all these can in conscience use the benefit conceded to them by law; namely whether they can seek the rescission of a contract, even when they were not injured; and whether, the contract having been rescinded, they can retain the thing accepted (e.g., money borrowed).

1. If they acted without fraud, or have not been made richer from the contract, they can use the benefit of the law, since the law was passed for the common good; - moreover those who contract with minors, interdicted persons, or wives ought to impute to themselves the damage inflicted, since they are warned by the law not to make pacts with these except under the conditions defined by the Code.

659. 2. But if minors, interdicted persons, or wives used fraud, pretending that they are capable, or if from the pact they have become richer, they must compensate the damage unjustly inflicted by frauds, and restore the thing accepted in itself or in an equivalent: for then they are unjust damagers or possessors of another's thing.

Thus if a minor, already of mature character, falsely pretends that he is older by birth and borrows money, he must return it; likewise, he who is absent from the paternal home for the sake of studies and procures those things which are necessary for himself for honorable support; likewise a wife who borrows money for assisting her own and her family's necessities: for they have been made richer. - On the other hand, if minors, wives, and interdicted persons are known as prodigals, and spend the borrowed money uselessly by indulging in drinking and pleasures, neither these nor their parents or tutors are bound to restoring; for they have not been made richer from this, nor moreover have they used fraud. - Likewise, if someone in good faith handed over money by loan to some minor, thinking him worthy of trust, and the coins were consumed for useless uses, strictly speaking the minor is bound to nothing; but equity demands that compensation be given to the lender.

254. Principle. Every man can contract, provided that: a) he possesses the use of reason; and b) he is not specially prohibited by positive law.

The reason for the first is that no one can impose an obligation upon himself unless he truly knows it. Hence, by natural law itself, the following cannot contract: a) infants who have not yet attained the use of reason. Ordinarily, before the seventh year infants are considered to lack the perfect use of reason. After the first seven years, sufficient use of reason is presumed, and consequently a contract then entered is indeed valid by natural law, but is often declared rescindable by positive law; b) the perpetually insane; c) the drunken, lunatics, etc., during the time in which they lack the use of reason.

The reason for the second is that positive laws (whether civil or ecclesiastical), for the common good, can licitly limit the freedom of contracting. And thus this has been done by all systems of law with respect to minors, wives, interdicted persons, those civilly dead, etc. The statutes of several civil codes were already sufficiently explained above when there was discussion of the subject of dominion.³¹ The general rule is: Minors, wives, and all those limited in the faculty of contracting can rescind a contract entered; but those with whom they contracted cannot do the same, or, as Roman law establishes: "Age comes to the aid of minors in losses and does not harm them in things prosperously conducted."³²

But if it is asked whether these statutes have force also in conscience, so that contracts entered can safely be rescinded if civil law so permits, the general response is affirmative. The reason is that, by a just general statute, civil law can validly and licitly grant, on account of the common good, the rescission of some contract. But if some suffer damage through such a rescission, they must impute this to themselves, because they knew or ought to have known that they could not validly contract with minors, wives, etc.

Minors, wives, and other interdicted persons must, however, repair damages arising from rescission of a contract: 1. if they used fraud, pretending that they were free to contract, for then they are unjust damagers or possessors in bad faith; 2. if they were made richer thereby.

Cases Resolved. The following cases are easily resolved from what has been said:

1. A minor son contracted many debts and squandered the money received. If the civil laws establish that a minor cannot enter any valid contract, neither the parents nor the son himself are bound to pay the debts contracted, provided that: a) the son employed no fraud toward the creditors; b) he was not made richer from the debts contracted.³³

2. A minor son borrowed 1,000 francs from a very wealthy Jew, promising interest of 50 percent annually, and moreover swearing that he would faithfully execute the contract and would never make use of the benefit of civil law. This contract is not firm, and after a legitimate dispensation from the oath has been obtained, it can be rescinded with the aid of a civil judge.³⁴

3. A minor son (without the consent of his father and of civil law) bought something. The contract can be rescinded by the minor, but not by the seller, who can be compelled to return the price received and take back the thing sold. The reason is that one who (even in good faith) contracted with a minor cannot prevent the rescission of such a contract.³⁵

4. A wife (without the consent of her husband and of civil law) bought a house. Afterwards she advises her husband to rescind the purchase, even though the seller suffers damage thereby. The wife can use the benefit of civil law and does not injure justice by the rescission of the contract,³⁶ unless she was made richer by the contract itself.

³¹ Cf. nn. 18ff. and 29ff.

³² Cf. § 9, Inst. 3, 19; L. 44, Dig. 4, 4.

³³ Cf. St. Alphonsus, Theol. mor. l. 3, n. 757. Cf. also German Civil Code §§ 107-113; Austrian Civil Code § 865; Italian Civil Code art. 1303; Swiss Civil Code art. 17ff.

³⁴ Cf. Génicot, l.c., tr. 9, c. 5; Billuart, l.c., a. 5.

³⁵ Cf. Noldin, De praeceptis n. 529.

³⁶ Cf. Lehmkuhl, Cas. consc. I, n. 296ff.

1037. PRINCIPLES. I. By the law of nature, all those can contract who possess the use of reason and are not prohibited by law. The reason for the first: no one can impose an obligation on himself unless he is actually capable of a human action. See what must be said n. 1044, 4.

Hence, infants and the perpetually insane cannot contract; nor lunatics, the furious, the perfectly drunk and the half-drunk, in the time of failure of reason. But this incapacity is so absolute that, from the very beginning, it renders the contract INVALID, independently of every intervention of legislator or judge (Lugo, disp. 22, n. 281).

The reason for the second: human laws can, on account of the common good, limit the right of a private person and weaken contracts to that end, so that damage from inexperienced persons may be excluded, and provision may be made for the peace of families and the honesty of morals.

This incapacity renders the contract only WEAK or rescindable at the will of the incapable person, whose incapacity nevertheless can never be opposed by the capable party, except in the sole case of deception (cf. n. 1039, III). Moreover, if the conditions required by law, for example the consent of father, tutor, husband, are fulfilled, the contract becomes altogether firm; the same happens if the contracting party, after the incapacity has been removed, ratifies the contract, either explicitly or implicitly, namely by not manifesting his will of rescinding within the time established by law.

1038. • II. By positive law, all those are commonly declared incapable of contracting firmly who do not have the free administration of their own goods. Such are: minors, wives, interdicted persons, prodigals, the civilly dead, and foreigners.

Several cases besides have been established of relative incapacity: thus tutors and curators are forbidden to acquire goods of minors committed to their administration; similarly judges and magistrates are forbidden to acquire rights about which litigation is moved before their tribunal, etc. We shall not treat these separately. It is enough to have said that laws of this kind, since they are just, oblige in conscience.

1039. I. A MINOR can firmly contract in the following cases: 1. if it is a question of accepting a benefit which is granted to him altogether liberally; - 2. if it is a question of things pertaining to the commerce or art which he himself exercises with the consent of father or tutor; - 3. if he is emancipated, he can lease his work and enter upon other contracts which pertain to the mere administration of goods.

II. Apart from the aforesaid cases, a minor cannot alone by himself contract firmly; but in his name, or at least assisting him, father, tutor, judge must act, according to the diversity of circumstances which civilists explain. Hence, if he has contracted with the conditions which the law appended passed over, the contract is rescindable, and the judge can decree restitution in full, which is a replacing in the former state in which the thing was before the lesion (III, 918). But indeed, the disposition of law on this matter is not everywhere the same.

In FRENCH Law (1305) and ENGLISH Law (Crolly, I, 461), rescission is granted to a minor, not at will, but only if he was injured from the contract entered upon without due assistance, from the adage: "A minor is restored not as a minor, but as injured."

In ITALIAN Law (1303), AUSTRIAN Law (863), SPANISH Law (1300), and GERMAN Law (107-113), except nevertheless those indicated above, a minor can contract no civil obligation; and therefore he can rescind the contract without being held to prove that he was injured.

III. Rescission can be sought both by the administrator of the goods of the minor, and by the minor himself, and by his heirs; but by no means by those who contracted with the minor. A minor is excluded from the benefit of rescission if he fraudulently asserted that he was of age; or if, after he became of age, he approved the contract entered upon by himself as a minor.⁰² Moreover, he is held to restitution if by contracting he deceived others or inflicted damage on them. Cf. Austrian Code, 866.

In GERMANY nevertheless (n. 108), the other party also, who contracted with the minor, can withdraw from the contract until the necessary consent has been given, if he was ignorant of the defect of consent or minority.

In various places,⁰³ there is in force the disposition of law that, in the case of rescission, a minor is not held to restore the thing accepted except insofar as the thing still exists in itself or in an equivalent, while the other party is held to restore the whole of what he received.

1040. IT IS ASKED. Whether a MINOR, or those acting for his cause, can, in the forum of conscience, use the benefit of civil law?

Resp. 1. Authors commonly answer affirmatively with respect to simple rescission, since it is an apt remedy against the inexperience of minors; "for the counsel of ages of this sort is fragile and infirm, and subject to many deceits" (l. 1, ff., de Minoribus).

2. But there is controversy with respect to the disposition of law which excuses the minor from restitution, if the thing accepted, for example from a loan for consumption, no longer exists, neither in itself nor in an equivalent. For some affirm that the natural obligation of restoring remains. But others say that this obligation has been taken away by law, on account of the common good (Allegre, Cod. civ., in art. 1305; Bucceroni, I, n. 953). - Finally, others think that restitution must be made if the money was spent for useful and necessary uses, for which the father ought to have furnished it (Lehmkuhl, I, n. 1253). Wherefore we judge the condition of the possessor to be better, until it has been decided otherwise by a judge.

1041. 1. In every law provision is made that a WIFE, without the consent of her husband, or, in the case in which the husband has unjustly denied consent, without the consent of the judge, is prohibited from placing several acts. - The general rule is this, that without the consent of her husband she cannot FIRMLY contract.

It is called the general rule; for she is restricted by no special incapacity: a) with respect to a testament; - b) with respect to acts of mere administration concerning paraphernal or separated goods; c) with respect to commerce which, with the consent of her husband, she publicly exercises; d) with respect to the purchase of those things which are necessary for the support of the family. Recall the things said n. 863-871.

2. If the wife goes beyond the faculties conceded to herself, the contract is rescindable. But rescission can be sought both by the husband and by the wife herself, unless she acted fraudulently, and by their heirs. But then there is an obligation of restoring all that in which the wife or those acting for her cause have been made richer, or even in full, according to the diverse disposition of Law.⁰⁵

IT IS ASKED. Whether a wife or those acting for her cause can, in conscience, use the privilege of civil law?

Resp. The husband certainly can do this, or his heirs, since the law was made in his favor for just motives. - Nor are there lacking theologians who affirm that the wife herself can use the same benefit of law. Yet they deservedly add that, if she wishes to rescind the contract, she is held to restitution in full, even if the thing accepted no longer exists, neither in itself nor in an equivalent. For since the law was not made in her favor, it is deservedly concluded that the natural obligation of the wife has not been taken away by Positive Law.

1042. 1. INTERDICTED PERSONS⁰⁶ are those who by sentence of a judge are held incapable of exercising a civil act, for example on account of imbecility or dementia. For these a TUTOR is constituted, who acts in their name. Hence, all contracts which they enter upon are rescindable, and those acting for their cause, or they themselves restored to their rights, can seek their rescission. Moreover, an interdicted person is restored as interdicted, that is, without being held to prove lesion. But the interdiction is taken away when its cause ceases, not by the fact itself, but through the sentence of a judge.

2. PRODIGALS,⁰⁷ juridically denounced, are incapable for certain contracts determined by law. They cannot enter upon these without the assistance of a counselor designated by the judge.

3. The CIVILLY DEAD are called those who, on account of condemnation to a most grave penalty, are despoiled of all civil rights: they cannot dispose of their goods, but, any testament whatever being set aside, legal succession is opened. To these, in Roman Law, religious solemnly professed are to be reckoned (cf. n. 2156).

The penalty of civil death, in several kingdoms of Europe, has already been abrogated, and generally perpetual interdiction is substituted for it.

1043. 4. FOREIGNERS are those who, in the place where they are staying, do not enjoy the rights of citizens. These are governed partly by the laws of their fatherland, partly by the laws of the region where they dwell (cf. n. 208).

a) With respect to the form or solemnities of a contract, they generally must observe the laws of the place, because "the place governs the act." Yet several acts can or even must be completed before legates or consuls of their own nation.

b) With respect to other conditions of acts, they are governed by the personal, but not real, laws of their proper domicile. Thus, for example, a Frenchman can draw up a testament in England according to the form admitted there; but he is governed only by French law with respect to the capacity of his own person and with respect to the quantity of goods disposable. Yet the administration and alienation of immovable goods always depends on the laws of the place in which they are found. Cf. Nouv. Rev. Theol. (a. 1883), p. 602; German Code, Introductory Law, art. 7-28.

835. • I. By natural right all and only those who have free use of reason can contract, because these alone can transfer dominion of their own goods and take up obligations. Hence the following cannot contract: 1° infants not yet possessing the use of reason; 2° the insane and the mad; 3° the perfectly drunk.

II. By positive right, besides the use of reason and the free will of contracting, which are required by natural right, it is also required that the contracting party have free disposition of goods, and not be declared by law incapable of making contract. But those unable to contract, at least in many things or firmly, are 1° minors; 2° wives; 3° those civilly dead; 4° interdicted persons; 5° aliens. A few things concerning each.

836. • Minors (minors, infants) are called those who have not reached the age fixed by law, so that, the authority of the father or guardian assigned to them being set aside, they are able to act civilly. By the law in force among us, anyone who has completed the twenty-first year is held as major. In many States women born 18 years ago, in some 16 years, are majors. Let each one consult the laws of his own State.

Minors are some not emancipated, but others emancipated. The former are simply subjected to the authority of father or guardian. But the latter are those who have been freed from the aforesaid authority through the benefit of emancipation; but they are freed either by the deed of the father permitting the minor to administer and contract for some years, or by sentence of the judge.¹

837. • In most, not to say in all, of our States, the principal statutes of the civil laws concerning the contracts of minors are nearly these:

1° "No minor can bind him or her self by contract for anything except necessaries, - such as food, clothing, or education, and for which the parent had failed to provide. If he or she contracts for other than necessaries, on attaining his or her majority, the contract is voidable at his or her option."

2° "Every contract made by a minor which is to his or her injury, is void; but a contract which is clearly to his or her benefit, is good; and any contract that is uncertain, whether injurious or beneficial, is voidable or not, as he or she may choose."

3° "If a minor be coaxed, cajoled, or forced into an unwilling contract, he or she may repudiate the same on becoming of age."

4° "If a minor obtain goods on the pretence that he or she is of age, and then refuse payment on the ground that he or she is or was not then of age, the creditor cannot recover the value of the goods, but he can have the minor so guilty punished for fraud."

5° "When a minor executes a contract, and pays money, or delivers property on the same, he cannot afterward disaffirm such contract and recover the money or property, unless he restores to the other party the consideration received from him for such money or property."¹

6° A minor emancipated cannot contract beyond the limits of his emancipation.

838. • Kent explains the relation of guardians to minors in nearly these terms.²

1° "He cannot act for his own benefit in any contract, or purchase, or sale, as to the subject of the trust."

2° "The guardian of the estate has no further concern with or control over the real estate than what relates to the leasing of it, and the reception of the rents and profits, and it is his duty to place the ward's land upon lease. ... If he neglects to put the ward's money at interest, but negligently, and for an unreasonable time, suffers it to lie idle, or mingles it with his own, the court will charge him with simple interest, and, in cases of gross delinquency, with compound interest. ... Every guardian ... is bound to keep safely the real and personal estate of his ward, and to account for the personal estate, and the issues and profits of the real estate; and if he makes or suffers any waste, sale, or destruction of the inheritance, he is liable to be removed, and to answer in treble damages."

3° "He cannot sell without the authority of the Court of Chancery. He may sell the personal estate for the purposes of the trust, without a previous order of the court. ... The power resides in the Court of Chancery to change the property of infants from real into personal, and from personal into real, whenever it appears to be manifestly for the infant's benefit."

839. Resolutions. - 1° A minor can with safe conscience use the benefit of the law, the case of bad faith being set aside, since the law was made in his favor.

Nevertheless he cannot seek rescission so that he be exempted from restitution of money which he received as a loan for consumption and squandered, although he carried back no profit from it;³ for he is bound to fulfill the obligation which he certainly knew while he was seeking the money. From elsewhere, it must be attributed to his fault if he perceived no advantage from it.

2° He who contracted with a minor can stand by the contract until nullity is invoked by the minor, or by his father or guardian. Yet private petition suffices so that he is bound to rescission when the injury is altogether open.

3° The minor alone, both by himself and through others by whom he is represented, can seek rescission of contract. Hence those who contracted with him cannot oppose his incapacity.

4° A minor can no longer impugn an act performed in minority when, already having become major, he has ratified it; because he was fully fit to contract when he ratified the act.

840. • By our law a wife can contract:

1° Concerning goods of which she has perfect dominion (see n. 605 sq.). Yet she cannot hand them over to her husband by Common Law unless a) by a written instrument she has testified her free consent, and b) while the man is not present, she has been questioned concerning it.¹

2° As to those things which are necessary for her condition and decent support, except nevertheless the case in which either with an adulterer, or otherwise without grave cause, she has departed spontaneously from the home of her husband (n. 445. 3°).

3° Where, as is permitted to her in certain States, she attends to public and separate commerce.

841. Resolutions. - 1° If a wife contracts without the consent of the husband with injury to his rights or goods, the contract is altogether void. But a wife of bad faith, although in that case she cannot obligate the husband, is nevertheless bound to repair damage inflicted upon another.

2° Nullity of the wife's contract can be invoked by the man in conscience, even if he has not suffered injury properly so called, because the nullity is sanctioned chiefly for his favor.

3° The wife herself can also invoke the nullity of the contract, as it seems, although the law does not intend precisely to favor her; because there does not seem a sufficient motive for excluding her from the benefit of the law, provided she did not deceive the other party. - But she must return everything in which she has become richer, and things must be restored into the same state as they were before the contract, provided she herself was not injured and deceived. But often by reason of deceit she must be excluded from the benefit of the law.

4° A wife who asks money from another as a loan for consumption for her husband, obligating herself to restore it in default of the husband, is bound to restore if the man cannot or will not make restitution; for she was the cause absolutely determining the contract. Therefore she must fulfill the obligation freely taken up, especially when the man is dead; otherwise she would become of bad faith. A fortiori a wife must restore money borrowed by herself for her own utility, without the husband's knowledge. For thus natural equity cries out.

842. • A very rare case among us, since civil death exists from the crime alone of high treason (high-treason). It does not deprive of the right of contracting.

843. • Interdicted persons are those who by sentence of the judge are declared incapable of exercising civil acts on account of a state of weakness, or dementia, or madness. Interdiction ceases when the cause ceases; and its cessation ought to be established by certain testimonies.

Moreover the nullity of contracts entered into by interdicted persons can indeed be opposed by them or by those conducting their cause, but not by those who contracted with them, just as was said concerning minors. Yet tribunals favor one who sells merchandise to an insane person without knowing the insanity. - Sometimes the faculty of contracting is taken away from drunkards, and the whole administration of their goods is committed to another.¹

844. • I. An alien (alien) is one who lacks the right of a citizen of the Federated States. But a citizen is one who either was born in the Federated States, or has furnished those things which are required by law so that he enjoy the right of a citizen (naturalization) (see Wells¹), and likewise his minor children residing here at that time.

II. Aliens are held as citizens:

1° As to those things which regard commerce (for commercial purposes); for "the place of domicile determines the character of a party as to trade." See Kent's Comment.²

2° As to contracts concerning movables.³

3° Within the five years which immediately precede their admission to the right of citizenship, as to necessary use of immovables.⁴

III. Aliens acquiring dominion of immovables are exposed to the danger that either they or their heirs may be deprived of them. Yet today laws everywhere dispose more mildly concerning them.⁵

467. Conditions required for contract on the part of the subject. - If only natural law is considered, all and only those who have the use of reason validly contract, whether physical persons, or also moral persons legitimately constituted: for for a valid contract on the part of the subject nothing else is required except deliberate and free consent by which a right can be transferred and an obligation undertaken. Whence those altogether incapable of contracting are: a) infants and children who have not yet attained the use of reason, but not minors under puberty who already enjoy sufficient use of reason; b) the perpetually insane; c) the drunken, the furious, and the perfectly hypnotized, at the time when they are not masters of their mind; - but less capable are all half-wits and all others who enjoy some, but not full, use of reason, for whom accordingly it is fitting that they not be able to contract without a curator who furnishes them counsel and assistance.

But by positive law those are capable of contracting who are naturally capable and are not declared incapable by law (a. 1123): human law can, for the common good, limit the right of private persons and to that end weaken contracts, so that spiritual or temporal damage may be excluded from persons specially to be protected, and provision may be made for the peace of families and the honesty of morals. Thus a) by ecclesiastical law certain persons can be incapable for certain contracts, as religious, concerning whom there is discussion in Canon Law; - b) by civil law, but variously for various nations, generally minors, interdicted persons, and, in many laws still, wives in certain cases determined by law are more or less incapable; and especially those to whom certain contracts are prohibited (a. 1124), just as also moral persons in whom the faculty of contracting is wont to be restricted.

468. Dispositions of positive law. - I. Minors either are not emancipated, and then they are under paternal power or under guardianship; or they are emancipated, and then they are under curatorship.

A. Minors not yet emancipated are under paternal power when they are deprived neither of legitimate father nor mother; those are under ordinary guardianship¹ who are deprived of at least one legitimate parent: ordinary guardianship is an office imposed by law, commanding or permitting, upon someone for gratuitously administering the person and goods of a minor.

¹ A twofold guardianship is distinguished in law: officious guardianship is an obligation spontaneously undertaken of educating a minor and administering his person and goods. This guardianship can exist while father and mother are living; nevertheless their consent is required (a. 361).

In French and Belgian law this guardianship is a) either legal, when it is deferred by the law itself: when one parent has died, guardianship is deferred by full right to the survivor (a. 390); yet the mother can renounce guardianship (a. 394), - which is not conceded to the father, - and if she enters a new matrimony, she loses guardianship, unless she convokes the family council, which will decree whether guardianship is to remain with her (a. 395); but if she keeps it, the husband is by the fact itself co-tutor (a. 396). If father and mother are lacking, and the last survivor has not designated a tutor, guardianship by full right is deferred to the nearest ascendant (a. 402); but if there are several of the same degree, one is to be designated by the family council (404).

b) Or testamentary, which is deferred by the surviving father or mother, legitimately enjoying paternal authority, to someone to be exercised after the death of the one deferring (a. 397), by testament or by an act before a notary (398 and 392).

c) Or dative or nominative, which is deferred to someone by the family council when legal or testamentary guardianship is lacking (a. 405 sq.): only one tutor can be named.

In every guardianship a substitute tutor must be designated (a. 420), whose office is to defend the minor, if there is need, against the administration of the tutor whenever the advantages of the tutor and of the pupil come into conflict.

Minors constituted under the power of father or tutor can do nothing in their own name, even with the consent of the tutor, but in all pacts they are subject to the father or tutor, who acts in their name and administers their goods as a good father of a family. - But the tutor 1) can accomplish acts of mere administration alone, for example, letting, sale of goods which the family council has decreed are to be sold, reception of revenues, payment of debts (450 sq.); 2) but acts of greater moment only with the concurrence of the family council acceding, for example, to accept succession even under the benefit of inventory (a. 461); 3) or of the tribunal, for example, to take a loan, or to constitute a mortgage, alienate immovables, carry out partition of goods or settlement (a. 457-458; 466-467); indeed 4) he is altogether prohibited from carrying out certain acts, for example, buying the goods of the pupil and accepting cession of a right or credit against his pupil (a. 450).

In certain laws, however, minors are permitted to receive goods without obligation (in Austrian, Swiss, German, English law); or to deposit their own monies in the public savings bank, or to be able to let their works in a certain manner.

B. Emancipated minors, who, exempt from the power of father or the authority of tutor, have the right of governing themselves and administering their goods, are constituted under curatorship.

They act in their own name, and can enter into certain contracts of mere administration (a. 481), but in matters of greater moment they need the assistance of the curator, the family council, or the judge, according to the various prescriptions of law (a. 482-484). - But if, with the consent of parents or of the family council, they assume the office of merchant, they are able alone to carry out all things which pertain to business, except the alienation of immovables (a. 487).

Now: 1) Acts entered into by minors with all prescribed legal forms are valid and firm.

2. Acts done without the common form required, i.e., without the assistance of tutor or curator, are valid, but rescindable, provided it is certain that the minor has been injured, but from the contract (a. 1305), not however from a fortuitous case (a. 1306) or from his delict or quasi-delict (a. 1310).

3. Acts done without the special formalities required, such as the consent of the family council or tribunal, are rescindable even independently of injury, but only at the will of the minor and of those having his cause.

But if after majority they have been confirmed, they cannot be rescinded (a. 1311). Ten years after majority, however, are conceded for petitioning rescission.²

² In Italy and Lusitania, five years are given.

In Italian, Austrian, Spanish, and German law, the minor alone, with certain exceptions indicated above, can contract no civil obligation; whence he can rescind contracts, even if he has not been injured.

In German law, they are also rescindable by the other contracting party, if he was ignorant of the defect of consent or minority (a. 108).

II. Interdicted persons. - Interdiction (ontzegging) is a sentence of a judge by which someone is declared incapable of ruling his own person and administering his goods. One is judicial, which is pronounced on account of the habitual state of weakness or insanity, even lucid intervals being supposed (a. 489), against an adult or even against a minor; another is legal, by which, during the punishment of those condemned to death or to forced labor, and sometimes to temporary detention or reclusion, they are deprived of the ability of contracting (a. 20-24 and 29 C. Poen. belg.).

Those judicially interdicted are constituted under a tutor. This guardianship is carried on in the same way as the guardianship of minors (a. 509). When the cause of interdiction ceases, the interdiction also ceases, yet not by full right but by the sentence of a judge with the same solemnities with which it was declared.

Now: 1) All contracts of interdicted persons are at least rescindable (a. 502), and a declaration of nullity can still be petitioned for ten years after the cessation of the interdiction (a. 1304), by the interdicted persons themselves or their heirs and those having their cause.

2. Contracts entered into before interdiction are valid, but rescindable by sentence of a judge if the cause of interdiction had already manifestly existed (a. 503).

3. Contracts of a demented person already dead cannot be rescinded, unless before his death interdiction had been petitioned, or dementia is gathered from the contract itself, or the matter concerns a purely gratuitous contract, namely donation or testament (a. 504 and 901).

Similar to interdicted persons are those who juridically are subjected to a judicial council. They are those who either because of a cause of the same kind as that which provokes interdiction, but not grave enough for pronouncing it (a. 499), or because of prodigality, are ruled in the administration of their goods by a judicially designated council (a. 513); in other words, they are half-wits or prodigals who cannot prudently manage their goods.

Contracts entered into before the said subjection cannot be rescinded, in any case. During the time of subjection, the capacity of contracting is restricted: under the authority of the judicial council fall lawsuits, settlements, taking a loan, receiving credits, alienating goods, pledging them and subjecting them to mortgage: namely, these contracts have no force without the assistance of the aforesaid judicial council; and if nevertheless they are entered into, they are rescindable; but other contracts have force.

III. Wives, without the consent of the husband, certainly cannot dispose of goods of which the husband has the usufruct or administration; but:

1. Generally they have perfect liberty of disposing of goods, if they have any, that are paraphernal or separate.

2. In any regime whatever, even of community of goods, a) if with the consent of the husband or tribunal they exercise separate public commerce, they can validly oblige themselves, without special consent of the husband, in those things which pertain to their commerce, so that, if there is community, the husband can now be obligated (a. 220; C. Com., a. 9-11); b) likewise wives can be obligated by reason of delict or quasi-delict (a. 216 and 1424); c) likewise by reason of domestic expenses for the sustenance of the family, because of the presumed consent of the husband, unless the contrary is certain; d) finally they can make a testament (a. 226).

3. Outside these cases, in French, Belgian, Dutch, Spanish, Lusitanian law, etc., wives labor under a certain general incapacity of contracting without the consent of the husband; whence without the special consent of the husband they cannot donate their goods inter vivos (by solemn donation), or pledge or subject them to mortgage, or alienate immovables under any regime whatever, or even accept donations or successions. - But when they are judicially separated from bed, by Belgian and French law they now have full liberty and marital authority is suspended.

Contracts entered into by a wife against the aforesaid dispositions are rescindable at the will of the husband, of the wife herself, and of their heirs, and indeed for ten years, even without injury; - unless however they have been confirmed by the wife, with the husband consenting (a. 225).

In Austrian, Swiss, Italian, German, and English law, there is now no special incapacity of wives for contracting; but if they dispose of goods of which the husband has administration or usufruct, the act can be invalid or weakened by reason of matter, because they dispose of a thing not their own, but it will not be weakened by reason of the subject, because the contracting party is incapable.

IV. Moral persons or societies which have obtained juridical capacity, especially institutes of public utility, often have a restricted capacity of contracting: for these are considered as minor persons, and therefore for acting they often need special permission of the competent authority; but other societies also cannot enter contracts except according to the prescriptions of law. Therefore, so that their acts can be valid or firm, at least in the external forum, they must be entered into according to the special formalities prescribed by law.

469. Moral principles concerning the obligation of contracts entered into by minors, interdicted persons, and wives.

I. Contracts of minors, interdicted persons, and wives, rescindable from privilege, can also be rescinded in conscience, even if they have promised the contrary, since that promise is invalid, opposed to the common good and to law; - provided they were entered into without fraud or another unjust means.

For since the law has been made for the common good unto their special protection, they can also use the benefit of the law; from another side those who contract with them ought to impute to themselves the damage inflicted, since they are warned by law not to make agreements with these except under legally defined conditions.

II. Those who in bad faith have used frauds or other unjust means in contracting cannot in conscience pursue rescission.

For the intention of the legislator is to protect the weak, not to patronize their frauds. Thus, for example, minors pretending (not simply affirming) that they are capable.

III. When the contract has been dissolved, those who contracted without fraud are bound to restore nothing, unless the thing still exists in itself or in an equivalent, so that they have been made richer.

Then they are bound not from a null contract, but from another title, namely by reason of the thing accepted. For the legislator does not intend that a minor or wife become richer, but that he or she be preserved unharmed.

IV. He who has deceived by fraud or has damaged by an unjust means, even when the contract has been dissolved, is bound to compensate the damage unjustly inflicted.

I say. By natural law all and only those can contract who have free use of reason, because these alone can transfer dominion of goods and undertake obligations. But by positive law, besides the use of reason and free will of contracting, it is also required that the contracting party have free disposition of goods, and not be declared by law incapable of making a contract. Moreover, by positive law the following are incapable of contracting, at least in many things or validly: 1st, minors; 2nd, wives; 3rd, the civilly dead; 4th, the interdicted and prodigals; 5th, aliens. A few things concerning each.

I. QUESTION I. Who can enter upon a contract? ANSWER. All who are endowed with the use of reason, and have the free administration of their own goods. Hence infants lacking the use of reason, madmen, the demented, the drunken, the sleeping, prodigals, wards before the fourteenth year, and minors before the twenty-fifth, cannot enter upon contracts without the assent of curators and guardians. Prodigals, nevertheless, must have been declared unfit for contracting by a judge. He is called a ward who has not attained the year of puberty. This year in males is the fourteenth, in females the twelfth. The age next to puberty is in males the tenth year up to the fourteenth; in females the ninth and a half up to the twelfth. They are called minors who have not completed the twenty-fifth year: after it they are called majors. Wards and minors, when they are capable of guile, can enter upon contracts concerning goods of which they themselves have the free administration, such as are goods which are conferred upon them either by parents, or by guardians, or by friends, that they may use them at liberty. These commonly require, even for this disposition of goods, the age next to puberty; which opinion I approve: because before this age they do not so possess the use of reason that they can enter upon contracts with astute and crafty men. But immovable goods, or movable goods which by keeping can be kept, wards and minors cannot alienate without the faculty of a judge, which cannot be granted without just cause, because the laws so dispose. A minor can contract concerning movable goods, if he lack a curator, and can use the benefit of restitution in integrum, if he be injured; otherwise a ward, to whom administration is forbidden. But the faculty of a curator or guardian being had, both a minor and a ward can contract concerning movable goods which by keeping cannot be kept, and can undergo an obligation both natural and civil. Those movable goods are said to be able to be kept by keeping which can be kept beyond three years, as gold, gems, and the rest of that kind. Those which do not last beyond three years are said to be unable to be kept by keeping. If wards and minors, without the licence of guardians and curators, enter upon contracts concerning those goods of which with the faculty of the same they can dispose, the contracts are null in each forum, the civil and that of conscience.

II. QUESTION II. What solemnity of law is required for the validity of a contract? ANSWER. Solemnity is twofold: one accidental, the other substantial. That which regards the substance of the contract, it being lacking, there is no contract; but if the former solemnity be lacking, it does not destroy the contract made. Whence is this diversity of accidental and substantial solemnity to be gathered? From the diversity of laws. One law forbids a contract without this or that formula, yet does not annul it. This is called accidental, and does not dissolve the contract: whence comes that proverb: Many things done hold good which are forbidden to be done. Another law, which not only forbids but also annuls a contract made without this or that formula, is substantial, and makes the contract null, if the prescribed rite be lacking.

III. Authors dispute whether a contract destitute of substantial solemnity is valid at least in the forum of conscience. All confess that contracts of matrimony and of monastic profession are null in each forum, if the prescribed solemnities be lacking. But they disagree concerning other contracts. Many affirm that contracts destitute of substantial solemnity, which in the exterior forum are null, are valid in the forum of conscience. To me it is more probable that they are null in each forum: since all the goods of subjects are subject to the government and direction of the supreme powers, regard being had to the order of carrying out public commerce. Therefore subjects are bound in each forum to observe the forms and rites prescribed by the supreme powers, by which human society is governed and public commerce is directed to the public good. Unless all things deceive me, it is a manifest error, hostile to human society and to public commerce, to assert that subjects are not bound in the forum of conscience to the observance of those laws. For the Apostle says, Romans 13: Let every soul be subject to higher powers. For there is no power but from God. Many other things I pass over for brevity's sake.

IV. QUESTION III. How does an oath confirm contracts void by natural or by positive law? ANSWER. It is certain that an oath does not confirm a contract null by natural law, because an oath cannot change the nature and essence of contracts. As regards contracts voidable by positive law, when the law annuls or declares the contract rescindable in hatred of the creditor, then it is certain that the contract is not confirmed by the oath: because then the law deprives the creditor of any action whatsoever against the swearer. Thus he who swears to a robber, a usurer, or others, out of grave fear, that he will pay a hundred, this promise is not ratified by the oath, nor valid; and robbers or usurers acquire no right against such a promiser who swears; the oath nevertheless, on account of the majesty of the divine name and the reverence due to it, is to be observed. When a contract is decreed rescindable by law on account of the public good and the common utility, likewise it is not confirmed by an oath: because then the contract is unlawful and null. But an oath is not the bond of an unlawful and depraved thing.

V. QUESTION IV. To whom does the benefit of restitution in integrum belong? ANSWER. Restitution in integrum is the reintegration of the former state made by the judge's authority: which benefit has been instituted chiefly in favour of minors, and has place when the contract, the form of law being regarded, was valid and ratified; but a minor was injured in it before the completed twenty-fifth year, and therefore by the judge's authority he is recalled to his former state. This recalling to the former state is made either by rescinding the contract, or by increasing the price in which the minor was injured. A notable injury is nevertheless required, that this benefit may be sought. This restitution in integrum has place in the contract of sale, if the minor was injured, either because he sold for less than the just price, or because he sold a thing which he ought not to have sold. Again, if a minor receive money on loan, and squander it, he is not bound to restore save that in which he has been made richer. But if the contract be according to the formulas of law and the rules of equity, restitution in integrum has no place.

FIRST of all, the insane and the furious are excluded from contracting. So asserts St. Bonaventure in 4. dist. 34. art. 3. quaest. 1.

St. Doctor observes, moreover, that there are several species of the insane. Some are insane perpetually; others have lucid intervals, and to this species drunkards are reduced. These three species appear in Leg. Hoc colore, 2. ff. de inoffic. test. joined with Leg. 17. ff. de Testament.

I ASSERT first. Those insane perpetually are incapable of making contracts, of drawing up wills, and of marriage.

AS TO contracts, even of matrimony, this is clear from §. furiosus, Instit. de inut. stipul. et in Leg. ubi non vero, §. furiosus, ff. de reg. iuris, D. Bonaventure in the place cited, D. Thomas eadem. dist. quaest. unic. art. 4. Sanchez book 1 de matrim. disp. 8. num. 15. Fagundez book 1 de contract. chapter 11.

The UNIVERSAL REASON of D. Bonaventure, which the others use, is that a free consensus is required for a contract; but these lack it, and therefore they can neither merit nor demerit, and consequently neither bind themselves, because they are held as dead, Leg. Qui ad certum, ff. locat. Leg. Bonorum, ff. rem ratam haberi.

YOU WILL OBJECT: Fabian the Pope, cap. furiosus, 32. q. 7.: "Neither a furious man nor a furious woman can contract marriage, but if it has been contracted, they are not to be separated."

Fagundez answers num. 3., from D. Bonaventure in 4. dist. 34. dub. 7. litt., that the Pontiff speaks of the furious in act, who cannot contract; but those who contract in a time of sound mind, even if afterwards they become foolish or dash their head against a wall, it will be a valid marriage.

I SAY second, that the furious who have lucid intervals, and indeed return to sanity of mind, can contract and make wills, from Leg. cum furiosus, ff. de iudiciis; and the Doctors commonly teach this with D. Bonaventure, alleged above.

The REASON of St. Doctor, which the others use, is that liberty for consent is present.

The proof of a lucid interval, moreover, is difficult, because there is an unfavorable presumption about such persons: what is required is that for some considerable time he act with deeds that a prudent judgment would deem to argue a perfect use of reason. So Burgos de paz. consil. 11. num. 19. Surdus consil. 89. num. 43. Fagundez cap. 11. num. 6.

IN doubt, moreover, when perpetual fury is not established, he is to be presumed of sound mind, because nature does not usually produce insane men, but men endowed with judgment; wherefore, since this presumption is natural, one must stand by it. So Reinosus observ. 32. Gloss. V. probari in Leg. ne Codicillus, Cod. de codicill. et in cap. ult. v. compotem, de success. ab intest. Boer. decif. 23. Mantica de coniect. ult. vol. lib. VII. tit. 15. num. 3. Couar. in 4. decretal. 2. part. num. 5. Menoch. with very many others lib. VI. praesumpt. 45. num. 18. Sanchez book 1 de matrim. disp. 8. num. 17. and it is clear from the text in Leg. 2. Cod. qui testam. facere possunt.

Spendthrifts are held to be the counterpart of the insane. Now the spendthrift is he who, lavishing without discretion, gives what should not be given, consuming and squandering his goods, as D. Bonaventure teaches in opusc. terminorum Theologiae declaratio, and Ulpian leg. 1. v. minoribus, ff. de iurat. furios: Gregorius Lopez lib. 5. tit. 11. part. 5. Hence prodigality is a vice of profusion, dissipative of one's own things without cause, as St. Doctor says, and it is a vice against the virtue of prudence and temperance, as is gathered ex text. in cap. saepe, dist. 45. et ex glossa in cap. ex parte penult. de consuet. and Cutnha teaches dist. 86. cap. 15. num. 4. Wherefore in ancient times tutors were given to spendthrifts as if to infants; so it was customary at Athens, as Athenaeus testifies lib. IV. caenae sapientum, cap. 20.; so also the Romans had decreed it in their own laws, and in Lusitania it is practiced lib. IV. nov. ordin. tit. 105. For spendthrifts are in this respect equated with the furious, as St. Doctor indicates in 15. Lucae at these words: In se autem reversus. And at these words: Erat filius senior in agro: for he is called elder because sensible: and at these words: Filius meus mortuus erat, et revixit, for spendthrifts are held as dead because of the lack of prudence and reason under which they labor.

Nor does l. in re mandata, Cod. mandati, stand in the way, which says the rich abuse their goods; for that is held true when someone lacks every vice of mind. Then it is true, moreover, before the administration is taken from him.

But that someone be proven a spendthrift, the deeds must be examined; for some seem to speak prudently but to act imprudently, Leg. is qui 12. ff. de tutor. et curat.

THEREFORE the actions of spendthrifts, before a curator has been given them, are valid; but afterwards by no means without the authority of the curator, Leg. Iulianus, ff. de tutor. furios. Before the provision of the Judge, however, if the spendthrift alienates, one may recur to the judge, that he redeem it, as the Jurists say, cited at Fagundez lib. 1. cap. 11.

That the spendthrift has indeed come to his senses will be proven if he acts prudently for at least two years, as the Doctors say.

AND truly, if a notorious spendthrift be chosen for the governance of the Church, such an election will be null, because it is harmful to the Church, argumento, leg. final. Cod. de sent. pass.

THERE FOLLOW minors and those below the age of puberty, to whom the faculty of making contracts is denied.

They are called INFANTS, moreover, sons up to the seventh year; from that age up to the years of puberty, impuberes; puberty begins in males in the fourteenth year, in females in the twelfth; and thereafter up to the twenty-fifth year they are called minors, as the Doctors commonly teach with D. Bonaventure in 4. dist. 27. art. 2. quaest. 1. And indeed before the seventh year boys and girls cannot contract, as all teach with D. Bonaventure dist. cit. quaest. 2.

The reason is that free consent is lacking; thereafter, up to the years of puberty, tutors are given them, during which time they are wards; after that, up to the twenty-fifth year, curators; and if before this year he is proven to have been wronged, he can be restored to his original position, Leg. in causa 13. §. interdum, et Leg. Quod si minor, §. non semper, ff. de minoribus.

A period of four years after majority is PRESCRIBED for restitution in integrum, according to the Clementinam unic. de restit. in integrum, et Leg final. where the Doctors treat de restit. in integrum, and this time runs from the point of the celebration of the contract. So teach Antonius Picardus, lib. 2. instit. titulo 19. and others at Fagundez cap. 12.

ALL the contracts of minors, therefore, in order to be valid require the decree of the Judge and the consent of curators or tutors, if they are wards, and one without the other does not suffice. Hence the alienation of the goods of minors without the other does not suffice. Hence the alienation of the goods of minors, without the decree of the judge and the consent of curators or tutors respectively, is null, as St. Doctor shows in 4. dist. 15. part. 2. art. 2. quaest. 1. ad arg.

REINOSUS obser. 30. Hercules Marescot lib. 1. variarum resol. cap. 68. num. 8. et leg. cit. 38. num. 15. Bartol. and others on Leg. Cum hi, §. eam transactionem, ff de transact. Provided, however, that fraud and deceit are absent; otherwise they will be void, leg. 1. ff. de minoribus, et leg. finali. A male over twenty years, and a female over eighteen years, could nevertheless petition the Prince for enabling.

NOTE, moreover, that the alienation or contract of minors done without the decree of the judge and the consent of the tutor is invalid, and is not revalidated if they arrive after the contract has begun. The reason is that these intervene as cause, which ought to precede, as Fagundez notes cap. 12. num. 16, and D. Bonaventure intimates in 4. dist. 29. and 30. passim. For the due consent ought to precede, not follow.

NOTE second, that tutors, curators, their sons, or wives cannot buy the goods of a ward; otherwise the sale is invalid Leg. Non licet, et Leg. si emptione 23.

YOU WILL ASK: can wards, at least in the forum of conscience, bind themselves by contracts?

The FIRST opinion is the negative one of very many, at Fagundez cap. 13.

The SECOND is the affirmative one of very many there, and it seems more probable.

The REASON is that a contract made by a curator is confirmed by an oath, as Sanchez lib. 6. de matrim. disp. 38. num. 13. proves. Therefore a natural obligation arises from it.

It is confirmed; for minors and wards can consecrate themselves to God by vows without tutors, as others teach with D. Bonaventure in 4. dist. 38. quaest. 3.

SONS of the family too, namely those under the power of the Father, even if they exceed twenty-five years, can indeed contract concerning CASTRENSIAN and quasi-CASTRENSIAN goods, because concerning these they have the most plenary right, so that they can even make wills about them, as most Doctors argue, at Molinam Tract. 1. disp. 131. Fagundez lib. 1. cap. 14.

Concerning ADVENTITIOUS goods, however, since the father has the usufruct of these, the son cannot donate or dispose of them among the living by any contract whatsoever. Sons cannot, however, donate in view of death without the consent of the father.

Concerning PROFECTITIOUS goods, however, since they are altogether the father's, the son can dispose of nothing without the father's leave. But if they contract concerning these two, an action is given against them, as Bassaeus says V. Contractus.

OBSERVE, nevertheless, that a son can exit paternal power in many ways.

The FIRST is by emancipation, which consists in the supplement of age granted by the Prince, on which Instit. quibus modis ius patriae potestatis solvitur, §. praeterea.

By the common law, however, when father and son appear together before a judge, the son exits by reciprocal consent, as Molina diss 229. proves. By the same common law, emancipation properly so called is when the father emancipates the son Leg. 1. ff. de iis, qui sunt sui, vel alieni iuris princip. Instit. et Leg. iubemus, et Leg. ult. Cod. de emancip.

The SECOND is by the death of the father; for then indeed he exits from his power.

The THIRD is by the heresy of the father, even occult, cap. 2. §. ult. de haeret. in 6. See Molinam Tract. 1. disp. 9. Sanchez lib. 2. decal. cap. 24. num. 5.

The FOURTH way is marriage, which can take place even against the will of parents, as D. Bonaventure teaches in 4. dist. 29. quaest. ult., where he shows that no one can prevent him from contracting marriage.

The FIFTH is by the profession of the father, or of the son, in Religion.