Consideration and the effects of contract

By English law no simple contract is binding upon a party unless he receives consideration for his promise. The promisor is said to receive consideration for his promise when the promisee does, forbears, or suffers, or promises to do, forbear, or suffer, something in exchange for, and at the time of, the promise made to him.

Inasmuch as the intrinsic reason and motive for entering into a contract is an essential element of it, and a condition sine qua non of its existence, to this extent we may say that consideration is necessary for the validity of a contract by the law of nature. Thus, if I give an alms to a beggar merely because he represents himself to be destitute, he will have no right to the alms if he is not destitute but well off. Again, if I buy a horse for running in a carriage and the animal which I obtain is quite useless for my purpose, the contract is null and void. However the English doctrine of consideration is different from this. In English law consideration must be something of value, not necessarily of equal or adequate value, but there must be a quid pro quo; a merely good consideration, as pity, gratitude, or relationship, will not be sufficient. If a simple contract has no such valuable consideration, it has no binding force. However, want of valuable consideration will not make a contract null and void in conscience; it will be valid in conscience if it has all the elements required by the law of nature, and in consequence it will be obligatory in the forum of conscience. English courts of law. It will merely be unenforceable in

The primary effect of a contract is to impose an obligation on the parties which binds them in justice to fulfil the contract. If one party fails to do so, the other will have a right to be compensated for the loss that he has suffered.

The extent and quality of the obligation imposed by a contract will depend on the intention of the parties, which may be gathered not only from the express terms used by them, but also from the law, from custom, usage, and the character of the parties.

Only the parties who entered into the contract are bound by it. They may agree together to confer a benefit on some third person; the latter will then receive advantage from the contract, but his rights and liabilities will not be affected by it.

It used to be a common practice to confirm an agreement by oath, and the older theologians have much to say on the questions which arise from such a practice. It is now seldom done, and the matter may be treated briefly.

If an oath is added to a valid contract, besides the obligation of justice, a fresh obligation is added which binds the party out of reverence for his oath to fulfil his engagement. Inasmuch as the oath is accessory, and what is accessory follows the nature of the principal, the obligation arising from the oath will receive its interpretation from, and will cease with, the obligation of the contract. By Roman law, whose provisions were adopted by the canon law, the contracts of minors and certain other contracts which were of themselves rescindable, became irrescindable when they were confirmed by oath. This, however, was an effect of positive law, which has no counterpart in English jurisprudence.

The obligation of a contract may, according to the intention of the parties, depend on whether a certain event has happened or will happen in the future. The contract is then conditional, not absolute. If the event is past or present, but it is not known by the parties whether it has happened or not, the contract at once is valid or not, according as the condition is fulfilled or not, but the parties will not know whether they are bound by the contract until they know whether the condition be fulfilled or not.

When the event is future, and its happening will, according to the intention of the parties, discharge the parties from obligation under the contract, the condition is subsequent. The parties are bound by the contract and will continue to be so bound, unless and until the subsequent condition is verified.

When the parties agree that the contract shall depend upon the happening of a future event, there is a condition precedent. An obligation at once arises from such an agreement of awaiting the event; when it has taken place the contract becomes absolute and begins to bind without any fresh act of the contracting parties; if the event does not take place, the obligation is discharged.

Sometimes on entering into a contract something is given as earnest, which serves as evidence that the contract has been concluded, or as security that it shall be performed. Unless there is a contrary agreement between the parties, the earnest will be treated as part payment or will be returned upon performance; it will be forfeited if the party who gave it fails to perform; it will be returned if the party who received it fails to perform.

If it is agreed that a certain sum is to be paid in the event of breach of contract by the party who was in default, the whole sum will be due if it represents liquidated damages. If, on the contrary, it is a penalty, the injured party, according to English law, cannot recover more than the amount of the loss actually suffered by him.¹

¹ Digest, n. 313.

A contract, whether concerning a thing to be given, or concerning a thing to be done or omitted, brings with it the obligation of executing the contract and of repairing damages following from neglect of execution.

I. The obligation of executing the contract; this obligation, since contracts must be regarded as entered into in good faith, extends not only to those things which are expressed in explicit words, but also to those things which equity, usage, or law postulates for the nature of the contract.

What if, in the time which intervenes between the contract entered into and its execution, the value either of money or of things is changed?

Response 1. If there is discussion of ordinary or, so to speak, normal changes, the contract must be put into execution just as it lies, because the contracting parties are judged to have consented to changes of this kind.

Response 2. If there is question of a greater change, this must be said:

1. If law, or an express pact, or custom assigns a norm, one must stand by these. With respect to law or pact the matter is clear; with respect to custom it follows from the fact that the contracting parties are judged to have contracted according to custom.

2. With law, express pact, and custom set aside, the one who suffers damage by executing the contract is bound to undergo this if there is question of a case which could be foreseen or feared; otherwise, if there is discussion of a case which could not be foreseen or feared, as an earthquake. The reason is that every contract entered into in the mode assigned in the question has something of an aleatory contract; and, this being posited, the former cases are judged to be comprehended in the contract, but not the latter. We shall apply these things in their own place to several contracts.

II. The obligation of repairing damages. But in order that this obligation arise from neglect of the contract, there is required either theological fault, or a special pact, or juridical fault together with the sentence of a judge.

These things having been noted concerning the effects of contracts in general, we shall speak specifically about the effects of qualified contracts, namely about the effects of a contract entered into under a condition, under a mode, for a cause, for a day, under a penalty, and confirmed by oath.

The obligation of a contract is the bond by which someone by force of the contract is bound to give, do, or omit something.

785. Principles. - I. Any contract duly entered begets an obligation in the forum of conscience, at least on the part of one of the contracting persons; because in a contract some right is granted to one or both parties; but to every right there corresponds its obligation; therefore, etc.

II. A contract duly entered, unless the laws establish something else for a particular case, has force only among the contracting persons alone, or others who either hold their place or have cause with them, such as heirs, mandators, etc. The reason is that no private person can impose a burden on another unwilling person, or confer a benefit; nor otherwise do contracts have force except from the private will of the contracting persons.

III. A contract duly entered obliges not only to that which is expressed in the pact, but to all the consequences which equity, law, or usage require according to the nature of the agreement. The reason is that the contracting parties are judged to act with good faith, and for this reason to will not only what is expressly included in the stipulation, but also what is usually born from it.

Hence the intention of the contracting persons must be carefully investigated, if it can be clear and expressly established concerning it. But if it remains obscure and ambiguous, it can be explained both from the matter of the agreement, and from the usage of places, and from the character of persons. Finally, if after all things have been weighed the doubt cannot be removed, an amicable settlement is to be advised.

786. Questions. - It is asked, 1. To what does a contract liable to rescission oblige?

I reply. That contract can be called conditionally obliging, namely if the nullity is not invoked. The reason is that the legislator, for the good of peace, did not will that contracts of this kind be judged and be invalid except when their nullity was expressly invoked and obtained. This follows from the things said concerning the contracts of minors, wives, and interdicted persons, n. 762 and following.

It is asked, 2. Whether contracts entered without the formalities prescribed by law for their validity are valid and oblige in conscience?

I reply. There is a threefold probable sentence:

The first sentence affirms, because by natural law the consent alone of the parties suffices for inducing obligation, and human law does not remove a natural obligation between persons otherwise capable, although it denies a civil action. - Molina, etc.

The second sentence denies, because laws invalidating the aforesaid contracts are founded in the presumption not only of fraud, but also of common danger; since the common good requires that an occasion for any frauds whatsoever be removed; and therefore the law can and ought to remove also the natural obligation of a void contract in the external forum. - Lessius, book 2, ch. 19, etc.

The third sentence holds that in these contracts the possessor must be preferred until by sentence of the judge he is condemned to restore ¹. - Thus St. Lig., n. 711, where he adds: "This sentence must altogether be held in practice, from the fact that, since possession grants a certain right, the possessor cannot be despoiled of the thing unless the right of the other is established."

¹ More clearly Lugo (disp. 22, n. 251), who proves that this opinion is in reality futile. "The third, middle sentence says that a testament or contract made without any solemnity is not altogether null; but is valid for this, that the possessor can retain until he is condemned by sentence; but after the sentence he is bound to restore. It denies, therefore, that some right comes to be from possession; but," as he adds, "this seems to be the sole intention of the legislator, and thus by law and the usage of upright men it seems to have been received, that only a right of petitioning in judgment and of obtaining against testaments and contracts of this kind is given, but not that he himself who possesses ought to despoil himself, which would be too rigid."

787. • It is asked, 3. How does the obligation of contracts cease?

I reply. The obligation of contracts ceases: 1. By payment, or by the furnishing of any thing owed, or also by execution of the promised or otherwise owed object.

2. By novation, or substitution of a new debt for an old debt, which is thus extinguished; e.g. I promised you to give ten barrels of wine each year; now I agree with you that I am no longer bound to give wine, but a thousand francs: then the obligation of giving wine is extinguished.

3. By condonation, or the act by which the creditor, with full liberty, remits the debt to his debtor. For each one can cede from his right in all those things which do not regard the public good, provided he was not incapable of contracting.

4. By compensation, or a fictive and reciprocal payment, which has place when persons are debtors toward one another in turn.

5. By confusion, which has place when the obligation of the debtor and the right of the creditor are united in the same person, e.g. if the creditor becomes heir of his debtor, or the debtor of his creditor, or the same person becomes heir of the creditor and at the same time of the debtor.

6. By destruction or loss of the thing owed, which sometimes frees the debtor from obligation, as in merely gratuitous contracts, and sometimes in others, where fault of the debtor does not occur... But sometimes it does not free, e.g. if it has happened by fault of the debtor, or he has been in culpable delay... etc.

7. By rescission, or rescindability, which has place when a contract consisting of the essential conditions is dissoluble because of some defects. That contract is valid until it is rescinded, as was said above (C.C. 1234).

8. By prescription, concerning which it was said above, Treatise on Justice, n. 580 and following ².

² Among the modes by which the obligation of contracts ceases, besides others of lesser moment, the mutual dissent of the contracting persons can also not incongruously be numbered.

788. • It is asked, 4. Whether cession of goods frees from entire payment?

I reply, 1. Negatively as regards voluntary cession, excluding a special agreement between the creditors and the debtor, by force of which the latter would be wholly freed. The reason is that the creditors have not been made wholly unharmed by it, and therefore there still remains an inequality to be repaired. - St. Lig., n. 669. - Gousset, n. 772. - Vogler, n. 542. - See above, On Justice, n. 719.

I reply, 2. Negatively, even as regards judicial cession; for the privilege of cession consists only in this, that the unfortunate and good-faith debtor can no longer be urged judicially; therefore, if he acquires new goods, he must satisfy the creditors up to entire payment. St. Lig., ibid. Make exception if, from the circumstances of things, the creditors seem to condone all the old debts.

It is asked, 5. Whether one about to cede his goods can secretly reserve something to himself?

I reply, 1. Certainly he sins against justice if he retains things of great value, because he inflicts damage on the creditors.

I reply, 2. He who cedes his goods, if he is in great need, does not sin against justice if he keeps certain goods by which he may be sustained with his family until provision has been made for him through the judge. But after the fact those are not to be disturbed who retained for themselves things truly necessary to them, of modest value. - Vogler, n. 542. - Gousset, n. 772.

789. • It is asked, 6. By what signs can it be distinguished whether the law invalidates a contract ipso facto, because of defect of solemnity, or only after the sentence of the judge?

I reply. Scarcely, and not even scarcely, can wholly certain rules be given in this matter; nor do either theologians or jurists agree among themselves. Nevertheless, generally the law seems to invalidate ipso facto in conscience and before the sentence of the judge:

1. When the invalidation is founded in a law determinative of property; because it pertains to the Prince, by force of supreme power, to determine the dominion of things. Hence dispositions by which the reservation of necessary heirs is injured are void ipso facto.

2. When the invalidation regards an act harmful to the public good; because the Prince must have the power of impeding, and therefore of invalidating in conscience, civil acts harmful to the common good; otherwise he would not efficaciously impede disorder in society. Hence agreements on account of a base cause are void ipso facto on each side.

3. When the invalidation is directly founded on the motive of the public good; because otherwise the legislator would not sufficiently obtain his end. Thus dispositions of dotal immovables are void ipso facto.

But when it is difficult, as often happens, to apply the aforesaid rules, one must have recourse to the interpretation of Doctors and to custom.

When is a contract with a penal clause had? - What is understood by earnest money? R. To the first: A contract with a penal clause is when someone, to firm an obligation, binds himself to something if he does not keep it. C. I. 1209; C. G. 1226; C. H. 1152; Inst. 1. 3. t. 16. § 7. Hence the debtor cannot exempt himself from the obligation by paying the penalty, unless this has been expressly established. C. H. 1153; C. A. 1336. If the principal obligation is invalid, the penalty is invalid, but not conversely. C. I. 1210; C. G. 1227; C. H. 1155. The penalty is owed from the time when he is placed in delay, and indeed from justice if it is sought, for at least culpable non-execution of the principal obligation; but by no means are both the penalty and the principal thing owed at the same time, unless it was established for simple delay. C. I. 1211-1213, 1229, 1230; C. G. 1228-1130; C. H. 1153; C. A. 909-911. Cf. C. B. 339 ff. A conventional penalty is owed before any sentence, since such a penalty involves a pact.

R. To the second: What is given in advance by the contracting parties holds the place of security for compensation of damages, if the agreement is not fulfilled, unless otherwise has been agreed, and is called earnest money, caparra. The party which is not at fault, if it does not wish to urge fulfillment of the agreement, can retain for itself the security accepted from the other; or exact double of that which it gave. C. I. 1217; C. A. 908-910. Cf. C. B. 336 ff.

What force do arrhae add to sale? What force does a promise of sale have? According to Roman Law: If arrhae are added only to a promise of sale, they do not confirm the contract, but each of the contracting parties can withdraw. But in this case, if he who handed over the arrhae to the other withdraws, he simply loses them; if he who received them withdraws, he must restore double, that is, the arrhae received, and in addition a value equal to them. - If they are added to the sale itself, they do not make it conditional, but are an argument of the contracted sale; for they are computed as part of the price, or are given as security of payment; whence neither of the contracting parties, against the will of the other, can withdraw.

In doubt whether they were added to the promise of the contract or to the contract itself, one must stand for the minimum, or they are judged to have been added only to the promise of sale. Inst. 1. 3. t. 24; L. 25 Dig. de Contrahenda emptione; L. Contractus C. de Fide instrumentorum.

According to C. G. 1589, 1590, a promise of selling is equivalent to sale whenever there is reciprocal consent of each party in the thing and the price. But if arrhae are joined to the promise, either contracting party can withdraw from the contract, so that they are lost by him who gave them; but he who received them returns them doubled. Hence it is clear that a promise of sale is not altogether to be confused, even according to C. G., with sale itself; since according to the same Code, by sale ownership of the thing is transferred, but by no means by promise of sale. Wherefore a promise of sale is equivalent to sale, not insofar as it transfers ownership, but insofar as the seller can be compelled, after receiving the price, or conversely the buyer, after receiving the thing, to fulfill it. Gousset 833. According to C. H. 1451, 1454, a promise of sale and purchase gives to the contracting parties the right of claiming fulfillment of the contract. If in the contract of sale and purchase arrhae have been given and accepted, the contract can be rescinded if the buyer is content to lose them, or the seller to restore them doubled. Cf. C. L. 1548. As regards C. I., cf. 993.

Certainly, speaking per se, it is one thing to promise a thing, another to give it. C. B. 336 ff.; Lugo d. 26. n. 10; L. 794.

Is one withdrawing from betrothals bound to restore the earnest money? That betrothals can be contracted with earnest money given, there is no doubt. For earnest money is a pledge given of fulfilling the thing promised. If the thing promised, as here, is licit, a pledge is licitly given for fulfilling it. - One who culpably withdraws from betrothals loses his own earnest money, and is bound to return that of the other party, and to restitution of as much as it was in that party's interest that such a contract be fulfilled. Cf. 926. - L. 852; Sanchez, l. 1, d. 30, 35; Schmalzgrueber, l. 4, t. 1, n. 126 ff.; L. 5, de Sponsal., C.; C. B. 1301.

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.

260. The obligation of a contract is the bond by which someone, by force of a contract, is bound to give, do, or omit something. A threefold obligation is distinguished: natural, which binds from the very nature of the contract, but only in conscience; civil, which arises from civil law and gives rise to an action in a civil court, but does not oblige in conscience; mixed, which has force both in the forum of conscience and in the civil forum.

1. Every valid contract gives rise to a true obligation in the forum of conscience. The reason is that the intention of truly obliging oneself is of the essence of a contract, which on this account is held as a private law with respect to the contracting parties. The gravity of this obligation is of itself to be measured from the gravity of the matter; therefore the obligation is grave in grave matter, light in light matter.

2. In a qualified contract, the obligation is to be determined from the nature of the clause added. The principal clauses which are wont to be added are the following: under a condition, under a mode, under a day, under a demonstration. - A few things are to be said concerning each.

261. A contract under a condition. A condition added to a contract can be either of the present, or of the past, or of the future. If it is of the past or of the present, then, when the condition is verified, the obligation of the contract begins at once; otherwise, it does not. But a condition of the future is twofold: the one suspensive, when the obligation is suspended until the condition is fulfilled; e.g., I shall give you ten francs if you procure that book for me; the other resolutory, when the obligation of the contract already existing is afterwards revoked upon the fulfillment or non-fulfillment of the condition; e.g., I sell you this book unless it displeases you within a week, or in other words: within a week you can dissolve this contract entered.⁵³

The effects of a suspensive condition are the following: before the event, the obligation of the contract is suspended, but it obliges one to await the event and not impede it; after the event of the condition, the obligation of the contract arises at once without new consent, and the obligation is then ordinarily considered to have existed from the day the contract was entered; but if the condition fails, no obligation arises, nor is it ever considered to have been present.⁵⁴

The effects of a resolutory condition are the following: before the event and if the condition fails, the contract is valid; but when the condition is fulfilled, the contract is immediately dissolved without any sentence of a judge.

If a condition concerning a base thing is added to a contract, i.e., concerning doing something evil or omitting something good, then such a contract, as concerning a morally impossible thing, is null by natural law; nevertheless, in the external forum these conditions are sometimes held as not added, or rather are presumed as modes and not as true conditions. Ecclesiastical law establishes this for the matrimonial contract and for espousals,⁵⁵ and Roman law establishes the same for testaments.⁵⁶ Hence, e.g., when an uncle in a testament bequeaths 1,000 francs to his nephew under the condition that he become a Calvinist, or that he not become a religious notwithstanding a divine vocation, this condition, as being base, is held as not added, and consequently the nephew can retain the 1,000 francs although he does not fulfill the condition. But several modern civil laws do not recognize this statute of Roman law. In practice it is necessary first of all to investigate the true intention of the contracting party or testator. If it is not altogether certain that he primarily intended the base condition, the contract or testament can be ratified even if the base condition will not be verified. For then it is not a contract under a condition, but under a mode, concerning which something will be said immediately.

⁵³ Cf. Noldin, De praeceptis n. 541.

⁵⁴ Cf. Billuart, De contract. diss. 1, a. 7, § 1; German Civil Code § 158ff.; Swiss Code of Obligations, art. 151ff.

⁵⁵ Cf. below, III, n. 664.

⁵⁶ L. 9, D. 28, 7.

262. A contract under a mode,⁵⁷ or a modal contract, is that in which the end or use of the matter concerning which the contract is made is stipulated, or in which a special burden is imposed upon one contracting party. This mode is wont to be expressed by the particles: that, for, under this law, for the purpose of, etc. E.g., I give you 100 francs that you may enter a monastery; I give you 100 francs for buying books; I lend you this garment under this law, that you may use it on such a day, etc. - A contract under a condition differs from a contract under a mode in this, that the condition suspends the obligation of the contract until the condition is fulfilled, but the mode does not suspend the effect of the contract and imposes only the obligation of observing the mode. For a mode is nothing other than a burden added to an absolute and substantially complete contract, to which it stands as the accessory to the principal.⁵⁸ Therefore, a mode is never the primary motive of the contracting party. Consequently, a properly modal contract is not revoked if the mode is not observed. In practice, however, a modal contract is often distinguished from a conditional contract only with difficulty. If the mode imposed was held by either contracting party as the principal motive or at least as a condition without which not, the contract is to be considered conditional and not modal; but if the mode imposed was a secondary motive, the contract is held as modal.

⁵⁷ In German: contracts with an imposed charge (Verträge mit Auflage).

⁵⁸ Billuart, l.c., § 2.

263. A contract under a day or to a day⁵⁹ is that whose execution is delayed to a determinate day; e.g., I give 100 francs to a monastery when my father dies. A contract under a day immediately gives rise to an obligation, but not for immediate execution. Therefore, if the one promising dies before the day for executing the contract, the heirs must execute the promise made. But if the promise was made for an uncertain day, i.e., one not certainly future - e.g., I shall give you 100 francs on the day on which my daughter enters a monastery - such a contract is not under a day but under a condition, and consequently does not oblige immediately. Hence if I die before my daughter's entrance into a monastery, my heirs are not bound to pay the 100 francs promised. For the rest, in practice the intention of the one promising must first of all be attended to.

⁵⁹ In German: with a determination of time or a time limit (mit Zeitbestimmung oder Befristung).

264. A contract under a demonstration is called that in which the matter of the contract is designated not accurately but rather in a broad manner. For the quantity of the thing can be designated either demonstratively, if the thing itself is first expressed and then the quantity of the thing only secondarily; or taxatively, if first the quantity and then the thing is expressed. E.g.: I give you such a chest, which contains 100 francs. This is a demonstrative designation. I give you 100 francs, which are contained in that chest. This is a taxative designation. Now if an error occurs in designating the quantity, a contract entered under a demonstration is valid, but not one effected under a taxation. Thus the common opinion. E.g., if an uncle says to his niece: I give you this chest, which contains 100 francs, the niece can retain the chest with the money even if perhaps 200 francs are enclosed. On the contrary, if the uncle had said: I give you 100 francs, which are enclosed in this chest, the niece could not retain the 200 francs which were in fact found in the chest. For the rest, in practice all things depend upon the intention of the contracting party, and the principles set forth above concerning error occurring in a contract are to be applied.

265. On an oath which is joined to a contract.

Sometimes a promissory oath is added to a contract, by which the contracting party, under invocation of the divine name, obliges himself to fulfill the contract; e.g., a young man promises marriage to a girl and swears that he will keep the promise made. Very rarely is an assertory oath added to a contract.⁶⁰ Concerning the efficacy of this promissory oath added to a contract, the following holds:

Principle: All contracts are not changed in their character as contracts by an added oath.

I say, however: in their character as contracts, for in a valid sworn contract there is a twofold obligation: the one of justice by force of the contract, the violation of which induces an obligation of repairing the damage inflicted; the other of religion by force of the oath, the violation of which is indeed a grave sin but by no means of itself imposes restitution. The reason for the stated principle is that a promissory oath is added to a contract as an accident. But the common adage says: "The accessory follows the principal." Hence the Code of Canon Law, c. 1318, § 1, also establishes generally: "A promissory oath follows the nature and conditions of the act to which it is added."

⁶⁰ Cf. Billuart, De contract. diss. 1, a. 6.

266. Corollaries. 1. Neither the contract nor the oath is valid if there is question of a thing or action which cannot be furnished without sin. The reason is that no one can oblige himself to a sinful act. Hence all base sworn contracts are invalid, so that they ought not to be executed.

2. An oath appended to a contract which is invalidated and prohibited: a) by natural law; or b) by positive law on account of the common good, is null. - Hence an oath of a cleric by which he renounces the privilege of canon is null, because such a privilege was given for the common good rather than private good; likewise, an oath by which someone under grave fear obliges himself to enter marriage is null, because the Church placed the impediment of fear in matrimony on account of the common good, namely, for avoiding hatreds, scandals, etc.

3. An oath appended to a contract which indeed induces a natural obligation, but is rescinded by positive law principally in favor of the contracting party, is valid. The reason is that the obligation of an oath is to be sustained as long as it is licitly observed. But in this case the oath can licitly be observed. Therefore Alexander III already said: "It is not safe for anyone to act against his oath unless it is of such a kind that, if observed, it would tend toward the destruction of eternal salvation."⁶¹ Hence a minor who promised by oath that he would not rescind the contract must observe it unless a legitimate dispensation has been obtained. When and how dispensation can be obtained in a promissory oath will be said below, n. 454, in the tract on religion.⁶²

4. An oath and a contract extorted by fear are valid (unless declared invalid by positive law), but they can be rescinded by legitimate authority. It has already been said above, n. 258, that a contract entered through fear is commonly valid, because fear does not remove freedom. Likewise, an oath extorted by fear is valid, and therefore the Code of Canon Law, c. 1317, § 2, establishes: "An oath extorted by force or grave fear is valid, but it can be relaxed by an ecclesiastical superior." Hence, if someone from fear of death swears that he will give a sum of money to a robber, he is bound to give it both by force of the promise and by force of the oath; nevertheless, he can petition legitimate authority either for rescission of the contract and dispensation from the oath, or for punishment of the robber. Thus St. Thomas,⁶³ and St. Alphonsus⁶⁴ calls this opinion far more probable. For the general rule is that every oath which can be fulfilled without sin is to be observed in the forum of conscience. - Cf. Billuart,⁶⁵ who rightly insists greatly upon the difference between the obligation arising from a contract and that arising from an oath. The first obligation is real and passes to the heirs. Its violation induces a debt of restitution. The second obligation is personal and does not pass to the heirs, nor does its violation bring with it a debt of restitution. Hence, e.g., if someone swore that he would never revoke a testament and nevertheless afterwards revoked it, he is indeed perjured, but the revocation of the testament is valid, and neither the perjurer nor his heirs are bound to restitution.

⁶¹ c. 8, X 2, 24.

⁶² Cf. Göpfert, Der Eid, n. 276ff.

⁶³ S. theol. 2, 2, q. 89, a. 7 ad 3.

⁶⁴ Theol. mor. l. 3, n. 174.

⁶⁵ L.c.

1055. DEFINITION. The obligation of contract is the bond by which someone, by force of the contract, is bound to giving, doing, or omitting something.

DIVISION. An obligation is one thing merely natural, another merely civil, and another mixed. - A merely natural obligation is that which indeed binds conscience, but gives no civil action in the external forum; a merely civil obligation is that which gives action in the external forum, but has no force for conscience, except by accident, for example on account of scandal to be avoided. A mixed obligation is that which has force for each forum, as obtains in contracts which are entered upon according to legal form.

1056. PRINCIPLES. I. Any contract produces a true obligation in the forum of conscience, whether in both contracting parties or in either one, according to the nature of the agreement.¹⁰ For the mind

self-binding is of the essence of a contract; for that reason it is held as the likeness of law with respect to the contracting parties (III, 707). - It is always a question, as is clear, of an obligation of justice; the contract of promise alone is excepted (cf. n. 1062).

The contracting parties, or those holding their place, for example heirs, are held not only to those things which are stated in express words, but to all those things which, on account of the nature of the contract, law, or prevailing custom, are considered implicitly agreed upon. Hence, for example, the seller is held concerning eviction, even if nothing has been expressed about this (cf. the things said n. 1032).

1057. • II. In a qualified contract, the obligation must be determined from the nature of the clause added. The principal clauses which are usually added are the following: 1. under mode; - 2. under day; - 3. under demonstration; - 4. under alternation; - 5. under condition.

1. MODE is a circumstance by which a burden not included in the substance of the contract is imposed on one party.

A contract under mode obliges immediately; nor nevertheless is the obligation extinguished from the mode not having been observed, unless it has been otherwise agreed. Thus, for example, the heirs of one who makes a legacy cannot vindicate for themselves an annual legacy, under the pretext that the mode is not observed, for example that Masses are not celebrated; but they have only the right of compelling the legatee to celebrate the Masses, or to take care that they be celebrated.⁰¹

2. A contract to a certain day, or to a day certainly coming at some time, for example when the father will die, produces obligation immediately; nevertheless the debtor is not held to fulfill it before the day.⁰²

If the obligation is to an uncertain day, for example when the ship has returned from India, the contract is resolved into a conditional one, and follows the laws of this.

3. A contract under demonstration is that in which certain words are added for the sake of designating the thing or person.

If the error is in quantity, it must be distinguished thus: a) If the quantity was designated demonstratively, that is, if the thing is expressed in the first place and afterwards its quantity, for example I leave to Titus my estate, of thirty acres, the whole is owed. - b) If it was designated taxatively, so that in the first place the quantity is expressed, then the thing itself, for example I leave three gold coins in such a little chest, the excess of quantity is not owed, unless from adjuncts something else is established.

4. A contract under alternation is that in which among several things something is designated indeterminately, to be furnished according to the will of one of the contracting parties, for example I promise an ox, or a horse. Cf. D'Annibale, II, 328.

If because of the destruction of one thing election becomes impossible, by the fault of the creditor, the debtor is freed; if it happened by the fault of the debtor, the creditor can seek the surviving thing, or the valuation of the other; if it happened by fortuitous chance, the contract can be called null. See what we said n. 632, Quaer. 1; cf. Austrian Code, 906-907.

5. CONDITION is a circumstance added to a contract, upon whose existence we will the value of that contract to depend. One is suspensive, another resolutive. It is called suspensive when the beginning of the obligation depends on fulfillment of the condition; resolutive, when an obligation already existing is revoked or resolved through the event of the condition, so that it is considered never to have existed (cf. Porpora, tr. XI, n. 72; German Code, 158; Austrian, 696 and 897).

Here in the first place it is a question of a SUSPENSIVE condition, since it properly makes the contract conditioned. It has various effects, according to the diversity of the thing about which there is question (VI, 890).

a) If the condition is concerning the present or the past, and in fact exists, the contract is valid immediately; otherwise, if it does not exist, although this is unknown, it is not valid. Similarly, it is valid if the condition is concerning a necessary future. b) If the condition is concerning a contingent future, there immediately arises an obligation of waiting and of not impeding the event of the condition; but when the condition has been placed, the contract passes into an absolute one, without it being necessary to renew consent: thus more commonly. c) If the condition is impossible or shameful concerning the future, it irritates the contract; because, if it is impossible, it is a sign that serious consent is not present, but rather dissent; but if it is shameful, or illicit, concerning the future, it cannot induce obligation, as one alluring to sin. See the things said n. 1036. Yet in CIVIL Law, donations on account of death, or last wills, are excepted, and in French Law also donations between the living, in which shameful or impossible conditions are held as not added. Thus, for example, if someone leaves you money under the condition that you profess heresy, or that you imbue children with heresy, the legacy is valid, although you are unwilling to fulfill the impious condition. The same is established, in CANON Law, concerning a shameful or impossible condition added to marriage, as we shall see in its place (n. 1973, q. 3).⁰³

Yet if it were established that the donor or testator plainly wished his liberal disposition to depend on the express condition, the donation would not be valid.

Note. A condition must be fulfilled in its proper species, nor is it enough that it be fulfilled equivalently, unless it is sufficiently established that the contracting parties wished otherwise. As often as the fulfillment of a condition is impeded by one of the contracting parties, he sins and ought to perceive no benefit on account of the condition not fulfilled. Hence, if it has failed by the deed of him who ought to have fulfilled it, nothing is owed to him; if by the deed of him who ought to have furnished something, he is obligated;⁰⁴ if by the deed of neither, the obligation ceases (D'Annibale, II, 309; German Code, 158; cf. ib., § 134, 138, 308).

1058. • III. The nature and quantity of an obligation are to be estimated from the will of the contracting parties. Hence, if the will was clearly expressed, one must altogether stand by it. If it was expressed less clearly, it is to be interpreted from the equitable and good. Generally the rules for the interpretation of laws come to be applied here (III, 707). See D'Annibale, II, 331.

Hence: 1. The intention of the contracting parties, rather than the literal signification of words, must be examined in doubt. 2. If a clause admits a twofold sense, it must be understood in that sense in which it can produce some effect; for the contracting parties are to be presumed to have wished to effect something. 3. Equivocal words are to be accepted in that sense which better squares with the matter of the contract. 4. What is ambiguous must be interpreted according to the custom of the place where the contract was celebrated; because custom is the best interpreter. 5. Clauses customarily appended, if they have been omitted in the contract, are to be held as appended; because each one is presumed to contract according to usage. 6. Clauses must be interpreted one from the others, so that to each is given that sense which is argued from the whole act; for interpretation must be made from the whole context. 7. In doubt, an agreement is to be interpreted in favor of him who contracted the obligation, since any obligation is to be accepted in the more benign sense.⁰⁵ Finally, if doubt, all things having been weighed, cannot be taken away, friendly TRANSACTION is to be counseled (cf. n. 1160).

1059. Questions. QUAER. 1. What obligation does a RESCINDABLE contract produce?

Resp. Before rescission has been denounced, it produces the same obligation as an altogether firm contract. Moreover, a contract can be rescinded by that party who has suffered injury, or who lacked sufficient capacity; and unless the matter is doubtful, or unless the law has defined that rescission is to be pronounced by a judge, it can be done by private authority. But if the contract is not rescinded within the useful time defined by law, it becomes altogether firm.⁰⁶

QUAER. 2. Whether a contract weak by law is firmed by an OATH?

Resp. Distinguish. A contract is declared weak or rescindable either on account of the common good of society, or on account of the private good of the contracting parties. In the former case, it is not firmed by an oath, which, since it is not a bond of iniquity, cannot induce the obligation of doing that which is against the common good. In the latter case, it is indeed firmed by an oath, but in modern Law it is firmed only in the internal forum, from the superadded bond of religion, from which there arises only a personal obligation, which does not pass to heirs; and the one swearing can obtain dispensation, because the other does not have strict right. Hence, the oath seems to be valid by which someone freely promises another that he will not revoke a testament or legacy made in his favor; because, in these and similar cases, the one swearing can yield his own right. Thus more commonly and more probably with St. Alphonsus (III, 177, 757).

You will ask whether that can be recovered which, by force of an oath alone extorted through grave and unjust fear, without another title, was paid? Resp. Some deny it, because an oath, on account of the honor of God, is to be understood simply and with effect; but an oath understood only of the momentary handing over of the thing would not be understood simply, and would be a true illusion. But very many others affirm it; both because that which must be restored can be recovered, and because by the payment made the oath has already been satisfied, nor is the reverence owed to the divine name violated by him who exacts reparation of the injury inflicted on himself. Nor was the handing over of the thing altogether illusory, because there is always danger lest the thing handed over to a thief can no longer be recovered (III, 174). Recall the things said n. 617, q. 3.

1060. Points to be noted. 1. The obligation of contracts CEASES in diverse ways, namely: a) by payment, or handing over of the thing owed; b) by novation, or the substitution of a new debt for an old debt: for example, I promised you grain; now I agree with you that in its place I shall pay a sum of money; c) by condonation or remission of the debt; d) by compensation: for example, I owe you one thousand francs, and for the same price I sell you a horse: the debt of each is extinguished; e) by confusion, that is, the conjunction of debt and credit in the same person, as if you become the heir of your creditor; f) by destruction or loss of the thing owed, which sometimes frees the debtor from obligation, as in merely gratuitous contracts, or also in others where the fault of the debtor does not enter; but sometimes it does not free, for example if it happened by the fault of the debtor, or he was in culpable delay; - g) by rescission made either by the consent of each party or by the will of that party which enjoys the faculty of rescinding; h) by prescription, as we said in its place (n. 900).

2. As concerns DAMAGES which arise from the non-execution of a contract, or from delay of payment, they must be repaired according to the principles explained where we treated the damager (n. 948).

Several authors in this place treat of the proof of obligations or payments in the external forum. These things can be read in the Codes themselves.⁰⁷

The obligation of a contract is the bond by which someone, by force of the contract, is bound to something to be given, done, or omitted.

858. Principles. - I. Any contract rightly entered produces an obligation in the forum of conscience, at least on the part of one of the contracting parties; because in a contract some right is attributed to one or to each party; but to every right there corresponds its own obligation; therefore, etc.

II. A contract rightly entered, unless laws establish something else for the particular case, has force only between the contracting persons alone, or others who either hold their place or have cause with them, such as heirs, mandators, etc. The reason is that no private person can impose a burden or confer a benefit on another unwilling person, nor do contracts have force except from the private will of the contracting parties.

III. A contract rightly entered obligates not only to that which is expressed in the pact, but to all consequences which equity, law, or usage demand according to the nature of the agreement. The reason is that contracting parties are judged to act with good faith, and therefore to will not only what is expressly included in the stipulation, but also what is wont to arise from it.

Hence the intention of the contracting parties must be carefully investigated, if it can be clearly and expressly established. But if it remains obscure and ambiguous, it can be explained both from the matter of the agreement, and from the usage of places, and from the character of the persons. Finally, if after all things have been weighed the doubt cannot be removed, an amicable transaction is to be advised.

859. Questions. - Query 1° To what extent does a contract liable to rescission obligate?

Resp. That contract can be called conditionally obligating, namely if nullity is not invoked. The reason is that the legislator, for the good of peace, did not wish that contracts of this kind should be judged invalid and be invalid, except when their nullity was expressly invoked and obtained. This follows from what was said concerning contracts of minors, wives, and interdicted persons, n. 836 and following.

Query 2° Are contracts valid, and do they obligate in conscience, which of themselves are valid, but which were entered without the formalities prescribed by civil law for their validity?

Resp. There is a threefold probable opinion.

The 1st Opinion affirms, because by natural right the consent alone of the parties suffices for inducing an obligation, and human law does not take away the natural obligation between persons otherwise capable, although it denies civil action.

The 2nd Opinion denies, because laws invalidating the aforesaid contracts are founded on a presumption not only of fraud, but also of common danger; for the common good demands that an occasion for any frauds whatever be taken away; and therefore the law can and ought to take away also the natural obligation of an invalid contract in the external forum.

The 3rd Opinion holds that in these contracts the possessor is to be preferred until by sentence of the judge he is condemned to make restitution. - Thus St. Alphonsus,¹ who adds "that this opinion is altogether to be held in practice, from the fact that, since possession attributes a certain right, the possessor cannot be despoiled of the thing unless the right of the other is established."²

860. • Query 3° How does the obligation of contracts cease?

Resp. The obligation of contracts ceases 1° By payment, or by the performance of any thing owed, or also by the execution of a promised or otherwise owed deed.

2° By novation, or the substitution of a new debt for the old debt, which is thus extinguished; for example, I promised to give you ten casks of wine each year; now I agree with you that I am no longer bound to give wine, but $1,000: then the obligation of giving wine is extinguished.

3° By condonation, or the act by which the creditor remits the debt to his debtor from full liberty. For anyone can cede from his right in all those things which do not regard the public good, provided he was not incapable of contracting.

4° By compensation, or fictive and reciprocal payment, which has place when persons are debtors toward one another in turn.

5° By confusion, which has place when the obligation of the debtor and the right of the creditor are united in the same person, for example, if the creditor becomes heir of his debtor, or the debtor of his creditor, or the same person becomes heir of the creditor and of the debtor at the same time.

6° By destruction or loss of the thing owed, which sometimes frees the debtor from obligation, as in merely gratuitous contracts, and sometimes in others, where no fault of the debtor occurs. But sometimes it does not free, for example, if it has happened through the fault of the debtor, or if he was in culpable delay ... etc.

7° By rescission, or rescindibility, which has place when a contract consisting of essential conditions is dissoluble on account of some defects. That contract is valid until it is rescinded, as was said above.

8° By prescription, concerning which it was said above, Treatise on Justice, n. 657 and following.

861. • Query 4° Does cession of goods free from full payment?

Resp. 1° Negatively as to voluntary cession, a special agreement between the creditors and the debtor being excluded by force of which the latter is altogether freed. The reason is that the creditors have not been made altogether unharmed, and therefore there still remains an inequality to be repaired; and although creditors then compound with the debtor concerning only a certain part to be paid, still they act thus because they cannot have more, nor on account of this do they renounce the right which they have to full payment if the debtor can ever pay.¹

Yet there are some today who think that, on account of the wholly changed nature of commerce, departure can be made from the opinion of former theologians. For commerce, as they say, today is carried on chiefly on credit, and almost wholly rests on credit. Hence creditors, foreseeing that some out of their many debtors will not be solvent, in order to keep themselves unharmed, have become accustomed to demand a greater price and also a greater addition for money for merchandise sold on credit, as is usual. They add that among those conducting commerce it is judged tacitly agreed that, from an unfortunate debtor ceding his goods, they require nothing beyond that about which agreement was made. Finally, they say, the law freeing the debtor in advance favors all, so that the same benefit which today comes from it to Peter with the damage of Paul will after perhaps some time come to Paul with the damage either of Peter or of another. The wiser will see how much these things are worth, and whether, at least taken together, they render that opinion probable; and they will rightly reply: creditors, although they foresee in general that some out of their debtors will not be solvent, do not foresee this in the individual case and as to each one; for to those whom they would foresee would not be solvent they would neither sell on credit nor furnish money; that nothing is certain concerning that tacit agreement among merchants; but that the civil law, although it uses those words: "forever discharged from all debts and claims,"² cares little about conscience and intends nothing else than to deny action to the creditor. - Meanwhile it is most certain that those are bound to restitution, as formally unjust damagers, who by their own grave fault have come into that necessity, namely of ceding their goods.

Resp. 2° Negatively also as to judicial cession; for the privilege of cession consists only in this, that an unfortunate debtor of good faith can no longer be pressed judicially; therefore, if he acquires new goods, he ought to satisfy the creditors up to full payment.³ Except if, from the circumstances of things, the creditors seem to condone all the old debts.

Query 5° Can one who is about to cede his goods secretly reserve anything to himself?

Resp. 1° Certainly he sins against justice if, beyond those things which are left to him by the law in each State (by the exemption laws¹), he retains things of great value, because he inflicts damage on the creditors.

Resp. 2° If, however, those things which are left to him by law do not suffice for the sparing sustenance of himself and his own (i.e. of children, father, mother, and wife), and therefore he also retains other things necessary for such sustenance, he is not to be disturbed. Thus from natural right, from which civil laws in such a case would unjustly derogate. Cf. Gousset.²

862. • It is useful to add in this place from Kenrick several cases in which justice is violated and the obligation of restitution is contracted by those who burden or have burdened themselves with debt.

The 1st is of those who contract debt with the intention of never paying it; as sometimes happens to buyers of merchandise, who, after money has been obtained from its sale, flee away.³

The 2nd is of those who rashly contract it, with no probable hope shining forth that they will be capable of paying; for it is not licit to risk with damage to others, or to seek profit.⁴

The 3rd is of those who neglect to pay it with detriment to creditors, which they are bound to repair, whenever by their own fault they refuse to satisfy them at the time assigned, even if they use the benefit of the law; for if from this it happens that creditors suffer a loss of goods, satisfaction must be made to them; otherwise, if fault is absent: for then the damage must be judged to happen by chance.⁵

The 4th is of those who, using various artifices, induce creditors to remit part of the debt, lest they lose the whole, or lest payment be deferred longer, or lest they be entangled in lawsuits: but those who obtain from creditors a remission of part because of anticipated payment, the creditors being driven by no necessity but consenting freely, can be excused, since custom so carries it, and the convenience is worth very much by common estimation.⁶

The 5th: the wife who makes excessive expenses in buying clothing, or in another way, and the sons who squander money given to them, cooperate with the injustice of husband and father, if they know that the husband and father is not equal to paying. Yet see n. 707, q. 3°.

The 6th: whenever someone knows himself unequal to paying, nor hopes that he can increase his estate by trading, he is bound to leave business, his goods having been handed over for the payment of debt; for no one is permitted to trade with the damage of another. Often, however, merchants are excused, to whom for the most part some hope shines forth.¹

The 7th: those who have received goods or money to be hidden at their place, on this condition, even tacit, that they would aid the debtor thereafter.²

The 8th: those who, after their things have been transferred to others by a fictitious title, use the benefit of the law in order to free themselves from debt, become guilty of perjury and injustice; for they emit an oath by which every fraud of this kind is denied.³

863. • Query 6° When does a law invalidating a contract bind conscience already before the sentence of the judge?

Resp. When the invalidation is founded either in a definitive law of dominion [(3) p. 484], or in the baseness of the pact (n. 834), or (which is often difficult to discern) directly in the motive of the public good.⁴

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).

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.

You Will Resolve. - 1st. The obligation from a contract indeed passes to the heirs, but not that which proceeds from an oath, which is personal.

2nd. Contracts which are only rescindable are not made firm by oath when rescindability is induced in view of the public good, but not if it is induced for the private utility of the contracting parties. Wherefore by force of an oath a contract entered into by a minor is not made firm, but a promise made to someone not to revoke a testament is made firm. - Cf. Can. 1318.

A mode is an added quality, for the most part not suspending the contract, but adding something to the burden or favor of one of the contracting parties. Modal contracts are made chiefly: 1st, to a day; 2nd, under a cause; 3rd, under a penalty; 4th, under demonstration; 5th, under disjunction.

Concerning modes the following things are to be noted:

1st. A mode must be observed from justice, unless it is repugnant to the substance of the contract.

2nd. Its violation ordinarily, and unless it has been agreed otherwise, does not invalidate the contract, because it is held as something merely accidental.

3rd. If the mode is base or impossible, it is held as not added; nor is the contract invalid, unless the mode is repugnant to its nature, or unless the will of the contracting party was altogether restricted to it.

4th. In a contract to a day, obligation arises immediately, but the effect is suspended until the determined day.

5th. In a contract under a cause (because) or under demonstration (I sell this or so much), error does not invalidate unless it pertains to the essence of the thing.

6th. If the error is in quantity, the whole thing is owed if the quantity was designated demonstratively; but if taxatively, as they say, the excess of quantity is not owed. Moreover, a thing is judged designated demonstratively if the thing is expressed in the first place and afterwards its quantity, for example, I leave to Titius my estate of thirty acres; but taxatively, if the quantity is expressed in the first place, and then the thing; for example, I leave three gold coins in such a casket. But the adjuncts of things must be weighed.

7th. In a contract under a penalty, that is, as often as a penalty is imposed on the one withdrawing, this penalty is owed from justice, if it is sought, at least if the contract has culpably not been fulfilled. Nevertheless the penalty must be moderate; otherwise it would not oblige.

8th. In a contract under disjunction, for example, I promise an ox or a horse, no determined thing is owed, and the payment of one takes away the whole obligation. Choice of the thing in itself pertains to the debtor.

A condition is a quality added to a contract, which for the most part suspends it until it is fulfilled. It is accustomed to be expressed by the particles if, unless, provided that, etc. The condition which can be placed upon contracts is manifold, namely: 1st, express or tacit; 2nd, of the present or of the future; 3rd, possible or impossible; 4th, necessary or merely contingent; 5th, honorable or dishonorable; 6th, potestative or casual, according as it is in the power of the contracting party or is not; 7th, positive or negative; 8th, contrary to the substance of the contract or not.

Concerning conditions the following things are to be noted:

1st. All conditions must be fulfilled in that sense in which the contracting parties are prudently judged to have wished to oblige themselves.

2nd. A condition concerning an impossible thing renders the contract null from the law of nature itself. The reason is that no one can oblige himself to something impossible.

3rd. A condition concerning the present and the past does not suspend the obligation, but immediately either brings it in or does not induce it; because it either exists or does not; therefore here and now either the contract is valid or null.

4th. A condition must be fulfilled not only equivalently, but in its own form. Some except the condition, if you shall marry, which they say is fulfilled by entrance into Religion; otherwise the condition would be base. Except if the condition were determined to some person, for example, if you shall marry Paul, because then a just and honorable reason can be present. Cf. St. Alphonsus, n. 930.

5th. Potestative conditions, or those which depend on the will of one of the contracting parties, are judged fulfilled not only when that is furnished which was enjoined in the manner of a condition, concerning which there can be no controversy, but even if that is not furnished in reality, when he who obliged himself either 1st, impeded the condition from being fulfilled; or 2nd, was impeded by another from satisfying the condition. Cf. Kenrick, tract. 11, nn. 15 and following.

The general rule among the Doctors is this. A contract validly celebrated begets a natural obligation in the forum of conscience (forum Poli), such that one party cannot withdraw from it in conscience. So the Doctors commonly hold with D. Bonaventure in 4. dist. 27. et sequentibus, passim.

I said validly celebrated, because contracts are often prohibited by positive law, or commanded with such solemnity, without which they are void, as Suarez notes lib. 5. de Legibus, cap. 24. Salas disp. 16. sect. 4. Bonacina disp. 1. quaest. 1. puncto 7. §. 5.

If the positive law does not render persons incapable, but simply invalidates a contract made without such solemnity, then it is disputed: whether it has force in the forum of conscience.

The common opinion teaches that it does not. So Suarez, Salas, and Bonacina alleged above, Azor part. 3. lib. 6. cap. 9. Fagundez lib. 1. cap. 4. de contract. num. 7.

The reason of D. Bonav. in 4. dist. 28. quaest. 5. is, because the common and public good naturally preponderates over the private; but often, to avoid inconveniences, the civil law intervenes. See the Holy Doctor in corpore, et ad 1. where, I think, he adduces the incapacity of persons as a partial example of those things which law is wont to decree for invalidating contracts.

Where he also seems to teach that not all acts, or omissions, forbidden by law, invalidate contracts. A striking sign of invalidity is this, if the law says: let it be void ipso iure, or facto. See Suarez lib. 5. de legibus, cap. 26. et 32. Bonacina de contract. disp. 3. quaest. 1. puncto 3. Likewise if the law says, they cannot contract. So Sanchez lib. 6. decal. cap. 12. num. 10. et lib. 6. de matrim. disp. 38. num. 20. and Fagundez teaches that this opinion is already most common lib. 1. cap. 4. num. 11.

But if the law decrees something, supposing a contract already made, it is not judged to invalidate it. So Suarez lib. 5. cap. 32. as if it be decreed that from such a sale the gabel tax be paid, otherwise that contract be void.

You will ask: whether when the law invalidates contracts out of a presumption of fraud, they are valid where there was no fraud.

It is answered: if the Law invalidates absolutely out of the presumption that fraud could underlie them when done otherwise, they will always be void; for the Law, speaking absolutely, must be taken absolutely, ex Leg. pretio, ff. de publican. Leg. 1. §. et generaliter, ff. de legatis, prae- stand. Leg. 1. §. quod autem, ff. de aleatoribus, Menochius cons. 74. The reason is, because the root is commonly bad, as the Holy Doctor notes in speculo animae, cap. 2. §. Quartus fructus rapina. And in this manner the invalidations of contracts are commonly done.

ADVERTE (take note), however, that often from contracts there results an eviction, which is the loss of a just title by which one possessed another's property.

OBSERVANDUM (to be observed) also, that there are many obligations for avoiding culpable negligence. Now there is one gross (lata) fault; another light (levis); another most light (levissima). Some add a widest (latissima) one, which is Dolo (fraud), as Barr. notes in Leg. Quod Nerva, ff. depositi, who also adds a grosser fault, which is presumed fraud (dolus praesumptus); but these are reduced to gross fault.

GROSS fault (CULPA lata), is the omission of the diligence ordinary among provident men for guarding their own things: as if you place a book lent to you on the public road.

LIGHT fault (LEVIS) is the omission of the diligence customary among the more diligent; as if you do not lock the house with a key.

MOST LIGHT fault (LEVISSIMA) is the omission of the diligence which the most diligent employ; as if, going out, and thinking the gate closed with the key, you do not test whether it is so, Leg. si Pater, ff. ad Legem Aquil. Leg. Dinuu, ff. de offic. praes.

The FIRST rule is. When a contract is made for the sole utility of the receiver, he is held regarding most light fault, and a fortiori regarding light, and gross fault. So Molina tract. 2. disput. 293. num. 13. Nauar. sum. cap. 17. numero 184. Syluester V. culpa, num. 84. et verb. commodatum, quaest. 8. Lessius lib. 2. cap. 2. dub. 3. num. 11. Bonacina de contract. disp. 3. quaest. 1. puncto 6. It is clear from Leg. Vinnu, de offic. praesid. et Leg. si putator, ff. ad Leg. Aquiliam. The example is: if you have a garment on loan, and you place it in a chest, not locked.

EXCEPT, however, the one who receives precariously, who is held only regarding gross fault, or fraud Leg. contractus, ff. de reg. iuris, et Leg. Quaesitum, §. et illud, ff. de precario. So Sylvester, verb. precarium.

The SECOND rule. When the contract redounds to the utility of the giver alone, then the receiver is held only regarding gross fault, or fraud; as if you have deposited with me a hundred gold coins, that I may keep them for you gratis.

The THIRD rule is. If the contract is for the utility of both, the receiver is held regarding light, and gross fault, not regarding most light fault.

WHETHER, however, these rules hold only in the forum Soli, or also in the forum Poli; the opinions are difficult, and the probability stands on both sides. See Fagundez lib. XI. cap. 10.

VII. QUESTION III. What is to be said of contracts entered upon under a cause, a mode, a demonstration, or a condition? ANSWER. A contract is said to be celebrated under a cause when the cause inducing to contract is set forth. The cause is twofold. One final, which so moves the contracting party that, it being removed, he would not contract. The other impelling, which allures the contracting party that he may more easily contract; he would nevertheless contract even it being removed. The contract is valid in the latter, null in the former case.

VIII. A mode added to a contract is a certain burden to be fulfilled by him who undertakes and accepts the contract. This mode does not suspend, but supposes a perfect contract. A demonstration in a contract is when something is indicated either of the thing concerning which the disposition is made, or of him with whom the contract is made; for example, if it be said: I sell you the horse which I bought at Padua for your sake; I enter upon a contract with you because you are my friend. These circumstances commonly do not vitiate the contract, because they do not give cause to the contract. Nor is every cause therefore a chief cause which, had the contracting party known it, he would have abstained from the contract; but that is called the principal cause which in fact brings in a grave change, and which, being known, would have drawn back the contracting party from entering upon the contract.

X. QUESTION V. How does a contract bound by a condition oblige? ANSWER. A condition added to a contract regards time either past, or present, or future. That which regards the first two times is not properly a condition, since it does not suspend the contract, but makes it absolute. A condition therefore properly taken regards the future. Conditions intrinsically necessary do not suspend a contract. Impossible conditions make the contract null, as do shameful conditions — two contracts being excepted, of matrimony and of last will, in which shameful conditions are held as not added.

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.

Certain Catholics in a certain town wished a certain religious Order to have a church in their town; indeed, after a large sum of money had been collected, they bought land on which a house and church might be built and handed it over to that Order by a gift between living persons. The diocesan bishop, however, although at first he neither gave nor denied consent, after the land had been handed over and the matter had been discussed with the canons, absolutely refused to give consent, so that there was no hope that the Order would come to the town. When these things became known, the donors expected that the land would be returned to them; the price of it after it had been sold, however, was retained by the Order. Hence it is asked:

1. What is a mode added to a contract, and how is it distinguished from a condition?

2. What is a gift between living persons, and can it be revoked?

3. In whom is the ownership of ecclesiastical goods, and what is to be said of their alienation?

4. What is to be said of the case?

1. What is a modus added to a contract, and how does it differ from a condition?

A modus is an obligation in justice to do something added to a contract, but the validity of the contract does not depend on the fulfilment of the modus. A condition is either precedent or subsequent. The former is an agreement that the contract shall depend on the happening of a future event. If the happening of the future event will, according to the agreement of the parties, discharge the contract, we have a condition subsequent.

2. What is a donatio inter vivos, and can it be revoked?

A donatio inter vivos is distinguished from a gift mortis causa and is irrevocable by English law.

3. Who has the ownership of ecclesiastical property and can it be alienated?

According to the common opinion the ownership of ecclesiastical property is in the community to whom it was given by the donors, whether that community be the province, the diocese, the parish, a Religious order, or some other religious corporation. It can not be alienated without the permission of the Holy See under pain of excommunication.

4. The case. Some Catholics wanted a certain Religious order to come and settle in their town. They collected a sum of money, bought a site, and presented it to the order. The bishop, however, after consulting his canons, absolutely refused his permission, so that there was no hope of the order being able to come to the town. It therefore sold the site, and kept the proceeds, although those who had presented the site expected that it would be returned to them after the bishop had refused his consent.

From the answers given to the questions above, it is clear that the order acted perfectly rightly, and indeed could not without the permission of the Holy See return the site to the donors. It was given absolutely, not conditionally, with the obligation to use it if possible for a certain purpose. Through no fault of theirs that purpose became impossible, but the site remained theirs and ecclesiastical property.