523. Notions. The most frequent mode of acquiring ownership is contracts, in which a great part of social life is contained (n. 382).

The terms pact, contract, stipulation, which in Roman law are distinguished, are now usually used without distinction.

1. Contract can be defined: the consent of two or more persons concerning a right to be transferred.

a. A contract in fieri must be distinguished, which consists in mutual consent by which one transfers some right and another accepts it, and a contract in facto esse, which is the effect arising from mutual consent. That effect is the acquisition and possession of the right transferred and accepted, with which coheres the obligation, arising from the transfer of right, of doing or omitting something. Now the definition adduced sets forth the contract in fieri.

b. Therefore the immediate effect of any contract is commutation of right, from which arises an obligation of doing or omitting something; and according to the diversity of the contract this obligation arises either from each side or at least from one side.

c. The contract itself and its obligation depend especially on the free will of those contracting, so that without the will of the contracting parties no contract subsists, and beyond their will it does not oblige.

2. For entering a contract validly, four conditions are essentially required: a. apt matter; b. capable persons; c. mutual consent; d. cause of the consent. Each of these must be discussed. Yet the essence of contract consists in mutual consent concerning some right, so that the contract remains imperfect as to essence as long as each contracting party has not given consent.

3. In every contract three things must be distinguished: essentials, naturals, and accidentals.

a. Essentials of a contract are called those things without which a certain contract cannot be substantially perfected, as the consent of the contracting parties and merchandise and money in sale: for without consent there would be no contract, and without merchandise and price there would be no sale.

b. Naturals of a contract are called those things which, either from law or from custom, are considered to be contained in a contract unless they are excluded by the express will of the contracting parties, as in sale the security of the buyer in the case of eviction.

c. Accidentals of a contract are called those things which are considered excluded from a contract unless by express agreement of the contracting parties they are received into it, as payment in a determined money or delay of payment beyond the time established by law.

¹ John de Lugo, De iustitia et iure, tom. II, De contractibus. Lucius Molina, De iustitia et iure, tom. II, De contractibus. L. Lessius, De iustitia et iure, l. 2, c. 17-28. Jos. Carriere, De contractibus, 3 tom. (Paris: Mequignon, 1839). Jos. Schwane, Die theol. Lehre uber die Vertrage^2 (Munster: Theissing, 1872). A. Vermeersch, Quaestiones de iustitia^2 (Bruges: Beyaert, 1904), q. 7-10. Add the authors who wrote the whole of moral theology, cited above p. 382.

524. Divisions of contracts. 1. By reason of effect: a. Unilateral, which produce an obligation in only one of the contracting parties, as promise and donation; and bilateral, which produce an obligation in each contracting party, as purchase-sale, lease-hire, loan for consumption, and loan for use.

b. Nude, which generate only a natural obligation or obligation of conscience; clothed, which produce a natural and civil obligation, or one in the external forum.

Nude contracts rest on the consent alone of the contracting parties; these the external forum does not acknowledge nor furnish aid for their execution. Clothed contracts have, besides the consent of the contracting parties, other solemnities prescribed by law joined to them, for example, writing, and therefore are acknowledged in the civil forum and produce a civil action. Contracts which do not produce a civil action (nicht klagbare Vertrage) are different according to the diversity of civil codes.

c. Gratuitous, in which only one of the contracting parties assumes a burden and the other has only an advantage, as in donation, loan for use, deposit; onerous, in which each contracting party has a burden and advantage, as in sale and lease, in which each receives something and must return something.

2. By reason of mode: a. Consensual contracts, which are essentially perfected by consent alone, as in some laws sale; and real contracts, which are finally essentially perfected by handing over of the thing, as loan for consumption and pledge.

There are contracts whose very nature and name demand the real handing over of the object, as loan for consumption, loan for use, deposit; but some contracts require for their essence, besides mutual consent externally manifested, nothing else, as sale, lease, etc. In these contracts, the real handing over of the matter pertains by natural law not to the essence but to their execution and complement.

b. Solemn contracts, which are made with certain formalities prescribed in law; simple contracts, which are contracted without formalities from the sole conditions of natural law.

From natural law no formalities are required in celebrating contracts, so that without them they are valid; but by positive law, for some contracts, determined formalities or solemnities are prescribed, without which they do not have force in civil law. Thus for testaments and hypothec certain legal forms are prescribed.

c. Contracts formally initiated, which are made by words or signs expressly showing consent; virtually initiated contracts or quasi-contracts, which are made by the tacit consent of the contracting parties. Thus he to whom the office of judge or pastor is conferred, by accepting the office tacitly obligates himself to undergoing all the obligations of that office; therefore undertaking an office is a quasi-contract.

But to jurists a quasi-contract is a presumed contract, to which one of the contracting parties indeed does not consent, because he is ignorant of the contract, but to which he would consent if he knew it. Thus he who usefully conducts the business of an absent person deservedly presumes that the absent person consents to the management of the business. Indeed it cannot be denied that contracts are valid, especially exchanges, from the presumed will of the other contracting party, provided this can reasonably be presumed; which obtains if the exchange does not harm the other but profits him.

3. Contracts of certain event, in which something must be given or done independently of a fortuitous event, as in donation and lease; aleatory contracts (Glucksvertrage), in which something must be given or done only dependently on a fortuitous event, as in gaming, wagering, insurance.

4. Named contracts, which have a proper name in law, as sale, lease, etc.; and unnamed contracts, which lack a proper name and therefore are signified only by the generic name of contract. Unnamed contracts are recalled to four species: a. I give that you may give; b. I give that you may do; c. I do that you may do; d. I do that you may give. It must be noted that by the verb to do, not to do is also signified, for example, I give you money so that you do not accuse me.

5. Principal and accessory contracts, according as they subsist in themselves and independently of another agreement, as sale, or depend on another agreement or suppose it, as hypothec.

6. Pure contracts, to which no mode or no condition is added; and qualified contracts, to which a mode or condition is added. Wherefore qualified contracts are subdivided into modified contracts, to which a mode is added, and conditioned contracts, to which a condition is added.

There are other divisions of contracts, which nevertheless either do not occur in recent codes, as contracts of good faith and of strict right, or are understood of themselves from the terms themselves, as valid, firm, void, and rescindable contracts.

525. What the matter of contracts is. Whatever constitutes an object of ownership, whether it is a thing, an action, or the omission of an action, generally can be the matter of a contract; but in particular some qualities are necessarily required in order that a valid contract can be entered: the matter of the contract must be possible, existing, one's own, honest, estimable by price.

1. Possible, both physically and also morally, unless someone has spontaneously wished to obligate himself even to a very difficult thing: for no one can be obligated to the physically impossible, and no one is considered to wish to obligate himself to the morally impossible unless he expressly says this.

a. Therefore if someone spontaneously obligated himself to a very difficult thing or to a heroic act, the contract, unless it is void from another source, is valid by reason of the object. But if someone obligated himself by contract to furnishing a thing which afterward from unforeseen circumstances became very difficult, he is no longer held to the contract.

b. If the matter of the contract is divisible and cannot be furnished wholly, the obligation of furnishing the possible part remains, unless from the nature of the thing or from the mind of the contracting parties it is established that they wished to be obligated either to the whole or to nothing. Yet he who by his own fault brought it about that the matter of the contract was rendered impossible is bound to repair the damage arising from this for the other contracting party.

2. Existing in fact or at least in hope, as the fruits of an orchard not yet born: for a right cannot be transferred in a thing which does not exist and is not hoped ever to exist.

526. 3. One's own, of the contracting party: for no one can transfer ownership to another which he himself does not have; therefore a donation of a thing taken away by theft is invalid.

a. If two contract concerning a thing to be furnished by some third person, the contract must be understood so that the contracting party obligates himself to taking care that the other furnish the thing; otherwise he would enter a contract not about his own deed but about the deed of another.

b. A contract can be made concerning a thing which at the time at which the contract is made is still in the ownership of another, provided it will be in the ownership of the contracting party; yet modern laws nearly all declare invalid the sale of an inheritance which is expected from a person still living.¹

4. Honest and licit: for there is no obligation to a dishonorable or illicit action; otherwise there would be an obligation to do and omit the same thing at once. Wherefore contracts concerning an evil thing induce no obligation, for example, concerning committing homicide, theft, etc.

For the value of the contract it suffices that the thing be honest as to substance, although some accidental circumstance is illicit; in which case the contract concerning an honest thing is illicitly perfected. Thus the sale of arms against the prohibition of the republic is valid but illicit.

5. Estimable by price, if the contract is made concerning a thing to be exchanged for a price. That is estimable by price which for one is burdensome or which deprives him of an advantage, but for another is useful or delightful. Wherefore he unjustly demands money who shows the way to one passing by, because the labor necessary for this is less than can be estimated by price; and in like manner contracts concerning a thing altogether useless have no force.

a. Therefore estimable by price is not only a thing or action which someone assumes is to be furnished, and an advantage of which someone deprives himself, but also an obligation which someone takes on himself.

b. Nothing prevents spiritual things from being able to constitute the object of a contract, whether gratuitous or onerous, provided simony is avoided, that is, provided they are not exchanged for a temporal price. Thus concerning prayer or Mass a promise, donation, or exchange with another spiritual thing can be made.

¹ G.A. Section 879.

527. Whether a contract concerning a thing already owed from another source is valid, so that it is permitted to receive payment for it.

a. A contract cannot validly be made concerning a thing which is already owed from justice to the other contracting party, because the contract would be made concerning the transferring of a right which the other already has independently of the contract. Thus a judge cannot enter a contract of accepting something for giving a just sentence, nor a finder for restoring a thing found.

b. But a contract can validly and licitly be made concerning a thing which is already owed from justice to a third person, if it also profits another in such a way that it does not harm the former. Therefore for the same action someone can receive the whole price from several by agreement: for the work which he furnishes is worthy of a price and is not less useful to several than to one.¹

Thus he who has been hired by Peter to undertake a journey for the sake of some business can also receive from Paul the price of the same journey, if he can at the same time accomplish his business too. For although the journey is already owed to one from justice, nevertheless it is not owed to him according to its whole value, but only insofar as it is required for the end for which he was hired by Peter.

c. Of itself valid, but illicit, is a contract concerning a thing which is already owed to the other contracting party from charity or from another virtue, as if a physician or advocate demands a price from a poor man to whom from charity he is bound to furnish his work gratuitously: for by the contract entered the poor man can demand the work not only from charity but also from justice, which is estimable by price.

d. Valid and of itself also licit is a contract concerning a thing already owed from another title or from another virtue, but not to the other contracting party, for example, concerning hearing Mass on a feast day, concerning laying aside hatred: for to the price corresponds the right which the other contracting party acquires and did not have before. Yet he who is so disposed that he would not furnish the thing owed unless the price were paid sins by this act of will; but the contract is valid.

¹ Cf. Holzmann, Theologia moralis, t. 4, n. 279.

530. In order that a contract be valid by natural law, consent must be:

True, or internal, not only external or fictitious; for the transfer of right, which is made through a contract, and the obligation which follows from it, proceed from the will of the contracting party; therefore when this is lacking there can be no contract.

a. Fictitious consent is had when someone indeed contracts externally, yet interiorly lacks the mind of contracting, or, what comes to the same thing, the mind of obligating himself: for the mind of obligating oneself coheres by necessary nexus with the will of contracting. The will of fulfilling the contract is to be distinguished from the will of contracting and obligating oneself.

b. He who fictitiously consents, or who contracts without the mind of obligating himself, enters no contract; therefore by reason of the contract he is bound to nothing. But if one feigning consent and deceiving another by it has inflicted damage on him, he is bound to repair this damage, and if he cannot repair it otherwise, he is bound to fulfill what he fictitiously promised.

c. He who enters a contract with the will of contracting, but with the will of not fulfilling the contract, contracts validly and therefore takes on a true obligation and is bound by force of the contract to fulfill it.

d. Fiction in contracting is not presumed, but must be proved. Yet if fiction happens in those circumstances in which it could easily be detected by the other contracting party, in each forum the other is presumed to have sufficiently detected the fiction, and therefore he who fictitiously consents cannot be obligated to compensation: for no injury is done to one knowing and willing.

531. Free and deliberate, that is, furnished with that advertence, deliberation, and liberty which are required for a perfectly human act, whether the contract concerns grave matter or light matter: for the contracting party imposes on himself a true and perfect obligation of justice; but this can proceed only from a perfectly human act.

Therefore a contract entered with half-deliberate consent, even of only one contracting party, is null. And this is the reason why the half-witted, half-drunk, half-asleep, etc., cannot enter a valid contract, in the same way as the same persons cannot emit a valid vow, even one obliging only under light obligation.

532. Mutual, that is, furnished by each contracting party concerning the same object: for one cannot by his own will acquire a right for another and obligate him to himself unless he himself wishes and consents. Therefore a unilateral contract is not perfected unless the other accepts the offered right; but a bilateral contract is not perfected unless each accepts the offered right.

a. It is not required that the consent of each contracting party be elicited and expressed at the same time, but it suffices that the consent of one has not been revoked, but virtually or morally still endures when the other elicits and expresses his consent. Wherefore that the consent of contracting parties must be simultaneous signifies nothing else than that the consent of one must be furnished as long as the consent of the other endures.

b. He who offers a contract to another can by natural law also determine the time within which the other must consent to the contract, and therefore can determine how long his consent virtually endures. Wherefore if the other consents within this time, the contract is valid; but if he consents after this time, the contract has no force because of the defect of mutual consent. Likewise he who offered a contract to another can by natural law withdraw from his offer as long as the other has not yet given consent. But to exclude disputes which could arise from this source concerning the value of contracts, positive laws are accustomed to establish how long the consent of him who offers a contract to another is considered to endure, and how long the one offering a contract can withdraw from his offer. Therefore civil codes must be consulted concerning this matter.¹

c. If a contract is made through a procurator, the contract is essentially perfected when the procurator consents, even if the contracting party himself has not yet consented: for the consent of the procurator is morally considered to be the consent of the contracting party himself.

¹ C.A. Section 862; Commercial Code 318-322; C.G. Sections 147, 149.

533. Manifested by a sensible sign, so that it can be perceived and accepted by the other: for acts which pertain to the mutual commerce of men must be manifested by external signs. Hence if someone offers a contract to another, it is not perfected when the other internally consents, but when his consent is externally manifested.

a. By natural law, for the value of a contract, words are not required, whether spoken by mouth or written, but any external sign which is apt for expressing consent suffices; yet positive laws, to forestall disputes, sometimes command that contracts be perfected by words or writing, so that contracts entered without these signs are either invalid or at least do not produce a civil obligation.

b. Whether the silence of him to whom a contract is offered is a sufficient sign of consent. alpha. Silence is held as consent if the contract is favorable to the one silent, as in a promise or donation: for acceptance of a favor is deservedly presumed and, when even a very slight sign accedes, becomes certain. beta. Silence is held as consent also in onerous contracts if the one silent can easily contradict and, if he does not consent, must manifest dissent. gamma. But silence in onerous contracts is not held as consent if the one silent either cannot easily contradict or is not bound to express dissent.

At what moment of time contracts among the absent are perfected; in other words: whether for the value of a contract it is required that the consent of the one accepting be intimated to the one offering, or whether the contract is perfected at the time at which the one accepting externally manifests his consent by a sign, before this manifestation becomes known to the one offering.

a. In unilateral contracts it is not required that acceptance be manifested to the one offering; therefore a promise or donation has force when the other has accepted it, even if the acceptance has not yet become known to the one promising or giving: for besides acceptance of the offered right, nothing else is required by natural law for perfecting these contracts. Yet positive laws sometimes demand that acceptance must be intimated to the other party.

b. In bilateral contracts it is more probable that it is necessary that the acceptance of the other become known to the one offering: for just as the consent of the one offering does not oblige him unless it has been manifested to the other contracting party, so of itself the consent of the one accepting does not oblige him unless it is known to the one offering, because in bilateral contracts the one accepting also offers something on his part. Therefore the contract is perfected at that moment when the acceptance of the other becomes known to the one offering. Hence if a contract is made among the absent by letters, the contract is more probably perfected when the consent of the one accepting becomes known to the one offering from the letters of reply. Yet the contracting parties can establish that the contract have force when the one accepting consents, before the consent becomes known to the one offering.¹ Positive laws likewise sometimes establish that a contract is already perfected by acceptance alone.

¹ Cf. Lugo, disp. 22, n. 26 ss.; Marres l. 3, n. 53; Vermeersch n. 316 ss.

534. Declarations. 1. The vices of consent are called those impediments which obstruct the liberty of consent and therefore bring it about that a contract is either altogether invalid or at least rescindable. Vices of this kind are error and deceit, force and fear.

2. A contracting party in contracting can be deceived in two ways: either by his own error, which is caused by no other, or by error which has been induced by another. The former deception is simply called error, but the latter deceit (taken passively).

a. Deceit actively is a saying or deed applied to deceiving another. This deceit can be committed either by the other contracting party or by some third person in order to enter a contract.

b. As to the value of the contract, it makes no difference whether the error was caused by the deceit of the contracting party or not; but this matters between the contracting parties: that the contracting party who deceived the other is bound to repair the damage arising from this for the other contracting party, provided he foresaw it at least confusedly; but the contracting party who did not deceive the other is not held for damages.

3. Absolute force, which takes away voluntariness, manifestly renders the contract invalid; but force that is not absolute, which does not take away voluntariness, is not distinguished from fear. Wherefore the same principles hold concerning force and fear. But it makes no difference whether he who instills fear threatens evil to the contracting party himself or to a person closely joined with the contracting party.

535. Divisions of error, which also equally hold concerning deceit. 1. Error can be substantial or accidental. It is called substantial: a. if it concerns the substance of the thing concerning which the contract is made, as if someone thinks he is buying gold but buys brass; b. if it concerns a substantial quality or a quality redounding into the substance of the thing concerning which the contract is made, either because that quality is intended primarily or because it is a condition without which consent is not given; c. if it concerns the substance of the contract itself, as if the contracting party thinks that there is question of donation when there is question of sale.

If a painting is bought for this reason, because it is thought to be the work of a very famous painter, this circumstance is intended primarily. A condition without which not need not necessarily be expressed, but can be known implicitly either from the disposition of law, from the usage of places, from the nature of the contract, or from the end to which the thing concerning which the contract is made is applied, as if wine is bought for a sick man or for the sacrifice of Mass.

Accidental error is said: a. if it concerns an accidental quality (not redounding into the substance) of the thing concerning which the contract is made, as if someone buys wine of two years which he thought was of four years; b. if it concerns an accidental quality of the contract, as if someone thinks payment of the price is to be made in this money, when it is to be made in another.

Error concerning the person with whom a contract is made is sometimes substantial, sometimes accidental. And in marriage indeed it is always substantial, because in this contract the person not only has the character of the contracting party, but also of the thing concerning which the contract is made; but in other contracts it is substantial if the person is intended per se and principally, which more easily happens in gratuitous contracts than in onerous ones. Thus if someone gives a precious thing to Peter thinking he is Paul, the error is substantial; but if someone sells a horse to Titius thinking he is Caius, the error is accidental. The same must be said of error concerning the quality of the person: namely, if the contracting party makes his consent depend on a determined quality, because it is the principal motive of the contract, the error is substantial, as if someone gives to Titius because he thinks him a blood-relative when he is not; otherwise the error is accidental, as if someone gives alms to someone because he is poor, but at the same time is thought to be a blood-relative.

2. Error is called antecedent when it gives cause to the contract, so that the contracting party, with the error removed, would not have made the contract; and it is called concomitant if it does not give cause to the contract, so that the contracting party would have made the contract even with the error removed.

536. On contracts entered from error. 1. Every substantial error, even merely concomitant, renders the contract invalid from defect of consent into the substance of the contract: for he who errs concerning the substance of the thing does not consent to the thing concerning which the contract is made, but to another concerning which he thinks the contract is made; and he who does not wish to contract except under a certain condition, namely that the thing be furnished with a determined quality, does not consent to the contract if that condition is lacking, even if the condition in itself is of no moment. Therefore by natural law a contract of this kind is invalid.

a. Therefore if someone buys wine made from apples thinking it wine from the vine, or if a priest buys blue cloth for making a cassock, thinking the cloth is black, the contract is null because of substantial error. And if the substantial error of one contracting party was caused by the deceit of the other (by substantial deceit), the deceiver is bound to repair the damage arising from this for the other, and if it cannot be repaired otherwise, he is bound to fulfill the contract.

b. In the external forum it is not enough that someone assert that he erred concerning the substance of the contract, but he must also prove the error; if he has not proved it, one must stand for the value of the contract. But in the internal forum the contract is void, provided the error truly happened, even if it cannot be proved.

c. It is not necessary that a quality of this kind, to which consent is attached, be expressly indicated by the contracting party: for it can also be known from the end to which the thing concerning which the contract is made is destined, as if a priest buys wine for the sacrifice of Mass.

2. No accidental error, even if it was antecedent and caused by the other contracting party, renders the contract invalid: for for the value of the contract it suffices that there be consent into the substance of the contract; otherwise contracts would be invalid too frequently, with disturbance of human commerce. But accidental error, even antecedent and caused by the other, does not impede consent into the substance of the contract; therefore the contract is valid by which someone buys fresh wine which he thinks to be old.

3. Antecedent accidental error which was caused by the deceit of the other contracting party renders the contract rescindable at the discretion of the deceived person, if it is soluble by its nature: for although the deceived person gave consent as to the substance, nevertheless the injury which he suffered obstructs its efficacy.

a. And indeed he who deceived another must remove the deceit or injury inflicted with all its effects; but the effect of the deception is the contract; therefore he must dissolve the contract if the deceived person wishes. But he who deceived another cannot dissolve the contract against the will of the deceived person: for the deceiver gave consent, against whose force and efficacy nothing obstructs. Hence antecedent error which is not caused by deceit, but is proper to the contracting party, does not make the contract (at least an onerous one) rescindable. A contract of this kind can be rescinded only by mutual consent, either simply or with reparation of the damage which arose for the other contracting party.

b. If not the contracting party himself, but some other person caused the error, the contract is rescindable where the contracting party was a participant in the deceit; but where the deceit was committed without the knowledge of the contracting party, although in his favor, the contract is not rescindable. For the right of rescinding a contract arises from the injury which one contracting party suffers from the other contracting party; but in this case one contracting party does not suffer injury from the other contracting party. Yet the deceiver must repair the damage of the contracting party, if any was suffered, and if he cannot repair it otherwise, he is bound to procure that he in whose favor he deceived the contracting party rescind the contract.¹

4. Concomitant accidental error, even if it was caused by the deceit of the other contracting party, does not render the contract rescindable: for the deceived person in this case does not suffer a true injury, because he would have made the contract even with the error known. Hence he who buys Austrian wine thinking it Rhenish, which nevertheless he would have bought even with the error known, makes a contract not only valid, but also firm or not rescindable; yet he has the right of reducing the contract to equality, or of diminishing the price so that it corresponds to the thing bought.

Therefore if a merchant sells adulterated goods or deceives buyers in weight and measure, it can happen that the contract of sale is invalid, or only infirm or rescindable, or valid and firm but to be reduced to equality.

a. The contract is invalid if the adulteration is so great that the thing sold is no longer suitable for the common use and the use intended by the buyer, as if old cloths recently colored, or worn garments recently cleaned and repaired, are sold as new; or if goods mixed in a notable quantity with cheaper matter are sold: for substantial deceit intervenes.

b. The contract is rescindable if the buyer bought adulterated goods for this reason alone, because the seller affirms that they are genuine; as if a wine-seller sells wine mixed with artificial wine as natural to him who would have bought only natural wine; or if a merchant sells goods mixed with cheaper matter, but not in a notable quantity, when nevertheless the buyer would have wished only genuine goods: for deceit intervenes, accidental indeed but antecedent.

c. The contract is valid and firm if the buyer would have bought the goods even if he had known the error, although not at the same price, as if the seller does not give full measure or full weight: for accidental and concomitant deceit intervenes. But the deceived buyer has the right that the excess of the price which he paid be restored to him.

¹ C.A. Sections 871-876. C.G. Section 123 agrees with natural law.

537. On contracts entered from fear. A contract is made from fear if fear gives cause to the contract, so that without fear it would not have been made. In general it must be said that contracts entered from fear are valid, provided fear did not disturb the use of reason: for consent which is given from fear is a perfectly human act and voluntary simply, although at the same time it is involuntary in a qualified sense.¹ In particular these things must be held:

1. Fear, even grave fear, which is not unjustly instilled, renders a contract neither invalid nor rescindable: not the first, because fear does not take away consent simply voluntary; not the second, because no injury is inflicted on the contracting party.

Valid and not rescindable is the contract of him who, from fear of prison because of a grave crime committed, wishing to emigrate to America, enters a contract with the captain of a ship. Likewise valid is the contract of him who injured another in honor and from fear of penalty promises him money, lest he refer the matter to a judge.

2. Fear, both grave and light, unjustly instilled for extorting consent, by natural law does not render a contract invalid, but nevertheless renders it rescindable at the discretion of him who suffered the fear.²

The reason for the first is that the contract cannot be demonstrated invalid either because of defect of consent or because of injury inflicted on the contracting party: for this injury indeed brings it about that the contract is rescindable, but not that it is invalid.

The reason for the second is that he who, by instilling fear, inflicted injury on the other contracting party must remove the injury inflicted, whether it was grave or light. But this is removed by the fact that he who suffered the fear can dissolve the contract if he wishes, but if he does not wish, can compel the other party to fulfill the contract. Light fear in the forum of conscience makes a contract rescindable if the fear was truly the cause of the contract; in the external civil forum light fear is not considered.

a. In this matter a twofold exception must be made: alpha. a contract entered from grave and unjust fear, as if a robber extorts money by instilling fear of death, is invalid if the contracting party did not consent in fact: for since he consents not spontaneously but under compulsion, it can happen that he furnishes no other consent than that which in circumstances of this kind suffices for avoiding the evil which he fears; but for this merely external consent suffices. Therefore it can happen that a contract of this kind is invalid from defect of consent. beta. Marriage and religious profession, if they are celebrated from grave and unjust fear, are invalid by positive law, as will be declared in their own places.

b. There are authors (Dicastillo, Lugo, Reuter, etc.) who, also excepting gratuitous contracts from this law, teach that those entered from grave fear unjustly instilled are invalid by natural law. Nearly all admit the probability of this opinion. For for the value of a gratuitous contract, consent altogether free and perfectly voluntary seems to be required; otherwise the one promising or giving is not considered to transfer right in the thing promised or given. Therefore in practice the one promising (according to some simply, but according to others only after rescission of the promise has been made) is not bound to hand over the promised thing. The same must be said of the giver.

3. Fear, both grave and light, unjustly instilled for another end, not for extorting consent, makes the contract rescindable if it is instilled by the other contracting party, but does not make it rescindable if it is instilled by some third person without the consent of the contracting party.

The reason for the first is that the one instilling fear must cease from injury and repair every effect or damage arising from the injury; as if someone spontaneously promises money to an enemy so that he may cease from vexations and calumnies.

The reason for the second is that the contracting party inflicts no injury and therefore must repair no effect or damage of injury; as if someone, in fear of death instilled by a robber, promises money to a man he meets so that he may free himself from danger.

¹ Cf. De principiis, n. 56.

² Lugo, disp. 22, n. 133 ss. C.A. Section 870 and C.G. Section 123 declare contracts entered from unjust fear rescindable.

538. What and of how many kinds it is. 1. The cause of a contract or of consent is called the reason because of which one transfers a right to another. This cause in gratuitous contracts is the will of doing good; in onerous contracts it is the utility to be received from the thing concerning which the contract is made.

2. A twofold cause of contract is distinguished: one motive, which proximately determines the consent; another impulsive, which does not proximately determine the consent, but is either its occasion or only moves somewhat to the consent. The motive cause is also called the principal and primary motive; and the impulsive cause is called the secondary and impulsive motive of the contract. The former especially moves the contracting party, and therefore when it exists the contract is valid, and when it is lacking the contract is invalid. The latter does not suffice of itself for determining the will, but indeed moves the will already determined, yet only so that it may contract more willingly; wherefore, even if it is lacking, the contract nevertheless exists.

The payment of a legacy which someone made while falsely thinking that it had been established by his father does not have force, because the motive cause is lacking, namely the debt enjoined by the father. The purchase of a field which someone made while falsely thinking that a treasure was hidden in it has force, because only the impulsive cause is lacking, namely the hope of finding the treasure. Whether in a particular case the cause was motive or impulsive can be known from the contracting party alone.

Whether contracts entered from a base cause are valid: I give you one hundred so that you kill Peter; or under a base condition: I give you one hundred if you kill Peter.

alpha. While the contract has not yet been fulfilled, neither contracting party is obligated to fulfill it; indeed each is bound to withdraw from the contract, and if the price had already been paid before the base action was placed, it would have to be restored, because it is not permitted to place the condition under which the price was paid.

beta. But when the contract has already been fulfilled, that is, once the dishonorable action has been placed, the other contracting party must pay the price, and the other can licitly demand and retain it.¹

alpha. This opinion, which is common among authors, can be called certain and is confirmed in this way. A contract concerning a base object or from a base cause is a promise concerning an evil thing, which is illicit and invalid; but if the other truly furnishes the evil work, by that very fact a new unnamed contract arises, I do that you may give, so that the one promising is bound to pay the price from justice by force of this unnamed contract. Namely, he who executes the base work furnishes something which is estimable by price: for the work is burdensome and dangerous to one contracting party, but useful or delightful to the other; and he furnishes it with the intention that the one promising be bound to pay the promised price. But this one by the base promise itself consents to the obligation of paying the price if the work has been furnished in his favor. But this contract, which is distinct from the base contract and is perfected when the base work is perpetrated, is indeed illicit insofar as it supposes a base deed, but in itself is licit and valid: for the matter of the contract is not the action insofar as it is evil, but on the one hand the material work placed at the service of another, and on the other the price to be paid for the work furnished.²

beta. And these things indeed hold by natural law; but positive laws now declare invalid contracts whose motive cause is illicit.³ Now those invalidating laws, since they were established for the common good in penalty of an offense, oblige in conscience. Therefore if it is certainly established that the law renders these contracts void even as to payment of the price after the base work has been furnished, there is no obligation of paying the price for the evil action truly furnished. The only question is whether these laws void the contracts before or after the sentence of a judge. If from the tenor of the law the former is established, the one promising cannot be obligated to pay the price, and the other can neither demand nor retain it; but if this is not established (as generally happens), in practice before the sentence of a judge favor must be given to the possessor, that is, to him who promised, if he has not yet given, or to him who did the base work, if he has already received.⁴

gamma. With contracts concerning a base thing one must not confuse cases in which, without any agreement, something is given to another with the intention that he be enticed to a dishonorable action; for example, if a master gives gifts to a maidservant in order to draw her to base things. For these are gratuitous gifts which need not be restored, even if the dishonorable action did not follow. Yet restitution is to be advised where there must be fear that base love is fostered by retention of the gift.⁵

¹ The Sacred Penitentiary, Apr. 23, 1822, declared that a prostitute can demand the price of prostitution and retain it.

² Cf. Lehmkuhl I, n. 1052 ss.; Vermeersch n. 292 ss.; Zeitschrift fur k. Th., 1909, p. 480 ff.

³ C.A. Section 878. Yet Section 1174 establishes that what someone knowingly already gave for executing an illicit thing can no longer be reclaimed; C.G. Sections 138 and 817.

⁴ Cf. D'Annibale, Summula theolog. mor.^5 (Rome: Desclee, 1908), II, n. 301; St. Alphonsus, n. 712.

⁵ Cf. St. Alphonsus, n. 712; Holzmann, Theol. mor., t. 4, n. 689.

539. What obligation they produce. A threefold obligation arising from contract is distinguished: natural, which arises from the very nature of the contract and affects conscience, but does not produce an action in judgment; civil, which arises from civil law and produces an action in judgment, but does not oblige conscience; mixed, which obliges in conscience and at the same time produces an action in the external forum.

1. Every valid contract produces an obligation in the forum of conscience, and indeed from commutative justice (except a gratuitous promise): for the will of obligating oneself, and this from justice, is of the essence of any contract except promise. By this obligation must be fulfilled not only those things which are expressly established in the contract, but also those things which are implicitly contained in the contract either from the nature of the contract, from positive law, or from custom of the region, for example, security of eviction (n. 523, 2).

2. The gravity of the obligation arising from contract is necessarily proportioned to the matter; therefore grave in grave matter, light in light matter: for from a contract the other contracting party acquires a right; but the nature of things requires that the obligation of preserving the right of another in grave matter be grave.

Wherefore the gravity of the obligation is so independent from the intention of the contracting parties that they would make no contract if in grave matter they did not wish to contract a grave obligation. But the object of the contract and of the obligation arising from it, unless determined by nature as in marriage, depends on the intention of the contracting parties. But if the intention of the contracting parties is not clearly expressed, it must be interpreted from the common sense of the words which they used, from the nature itself of the contract, from positive law, from the usage of regions, etc.; and if from all these it is not certainly established, one must stand for the minimum.

3. A rescindable contract obliges one party until the other party, who has the right of rescinding, requests rescission; but if that party renounces the right of rescinding, it produces the same obligation as a firm contract. A contract can be rescinded by private authority, with two cases excepted, namely if the matter is doubtful or if the law prescribes that rescission must be made by a judge. A contract which is not rescinded within the time defined by law becomes firm.

Note. Sometimes contracting parties mutually agree concerning a determined sum of money (poena conventionalis - Reuegeld) to be paid by him who withdraws from the contract without a just cause. A penalty of this kind must be paid both by natural law and by civil law (C.A. Section 909), provided it was seriously added and is not immoderate.

540. On an oath added to a contract.¹ An oath added to a contract is a promissory oath by which the contracting party, under invocation of the divine name, obligates himself to fulfilling the contract. Concerning the force and efficacy of this oath added to a contract, these things must be held.

1. An oath follows the nature and conditions of the contract to which it is added, from the rule of law: the accessory follows the principal (n. 251).

Therefore betrothals can be dissolved by mutual consent, even if the betrothed persons added an oath. A promise, even if confirmed by oath, does not oblige unless it is accepted.

2. An oath added to a contract which cannot be observed without sin is invalid: for it cannot oblige to a thing even only lightly evil.

Therefore an oath is invalid when added to a promise whose object is base or illicit, even if only by positive law, for example, to a promise of helping another in defrauding taxes to be paid from precept.

3. An oath added to a contract invalid by natural law cannot render the contract valid; indeed the oath itself is invalid, even if it could be observed without sin.

a. For an oath cannot supply the defect because of which a contract of this kind is invalid. Therefore, for example, sworn betrothals which are invalid by natural law are not confirmed by the added oath.

b. The common opinion indeed teaches that in this case the oath is valid and must be observed, because every oath must be observed if this can be done without sin. Therefore he who had sworn about paying usury is obligated from religion to pay it unless he had received dispensation from the oath, although he can seek it again as unjust. But the opinion seems altogether probable which says that the oath in this case is invalid and altogether frees from paying unjust usury.²

4. An oath added to a contract invalid or rescindable by positive law alone indeed does not make the contract valid or firm, yet brings it about that it must be observed, if it can be licitly observed, by reason of the oath, unless this oath is relaxed, provided the oath added to the contract was valid: for any valid oath, out of reverence for the divine name, must be observed if it can be observed without sin. Therefore from religion a contract of this kind must be observed, even if from justice it need not be observed.

a. Concerning contracts invalid or infirm by positive law, the older authors taught that they are confirmed by an oath, because Roman law established that because of the added oath the invalidation of the law ceased and that these contracts were to be held as valid and firm in reverence of the divine name. Yet since today civil law establishes nothing of this kind, it can be affirmed that all contracts, by an oath added, are not changed in the nature of contract.³

b. Thus a minor who promised by oath that he would not rescind the contract must observe it insofar as it is just (at least after attaining majority), unless dispensation from the obligation of the oath has been obtained. If someone under oath promised a robber a certain sum of money, the promise, if it was internal, is valid but rescindable; yet the oath, as one extorted by fear, is invalid and therefore does not stand in the way of rescission of the promise.

5. An act contrary to an antecedent oath is indeed valid, yet the one acting against the oath is perjured: for an oath does not take away the power of doing what he had promised that he would not do.

Therefore the revocation of a testament has force for one who had previously sworn that he would not revoke it; the donation made to another has force for one who had previously sworn that he would give to Caius and not to another.

¹ Cf. Laymann, l. 4, tract. 3, c. 8; Lessius, l. 2, c. 17, n. 50 ss.; Marres, De iustitia^2 (Ruraemond: Romen, 1889), l. 2, n. 267 ss.

² Ballerini-Palmieri II, n. 588; Genicot I, n. 599.

³ Since the Church in this part retains the dispositions of Roman law, in sacred causes an oath added to a contract of this kind renders the contract itself valid or firm, so that it must be observed both from justice and from religion.

541. Obligation of a qualified contract. A qualified contract is one to which a clause (mode or condition) has been added which accidentally modifies its obligation. Contracts of this kind are chiefly: a. contracts entered under a condition; b. under an end; c. under a cause; d. under a demonstration; e. to a day. The added clause must be determined from its own nature.

I. Contract under a condition. 1. Notions. a. A condition is an external circumstance added to a contract, on whose existence the value of the contract depends.

b. The added condition can concern the present, the past, or the future.

A twofold condition concerning the future is distinguished: one suspensive, which brings it about that the existence of the obligation depends on the fulfilled condition, for example, I give you one hundred if you go to Rome; another resolutive, which brings it about that an already existing obligation is afterward revoked or resolved when the condition is fulfilled or not fulfilled, for example, I sell you a book unless within a week it displeases you.

c. A condition concerning the future concerns either a necessary thing, which is known will certainly be, or an impossible thing, or a possible thing, which can exist and not exist, and whose event therefore is uncertain.

2. Principles. a. A condition concerning the present or the past brings it about that the contract has force if the condition exists, and does not have force if the condition does not exist, even if its existence or non-existence is not yet established.

b. A condition concerning a necessary future does not prevent the contract from having force at once, because a condition certainly future is considered added in vain, unless the contracting party expressly wished the event to be awaited, as if someone says: I will give you a watch if tomorrow the sun rises.

c. A condition concerning an impossible future brings it about that the contract is invalid: for he who wills something under an impossible condition in fact does not will, as if someone says: I give you a gold coin if tomorrow the sun does not rise.

Here also belongs a condition concerning a base thing, which is considered as concerning a morally impossible thing. But from positive law, especially canon law, conditions concerning an impossible or base thing in all contracts of last will are held as not added. Here it must be noted that a base thing is considered not only the demand that an illicit thing be done (if you become a Lutheran), but also the demand that a good action not be done, whether it is of precept or counsel (if you do not become a religious). Therefore a testament has force even if the dishonorable condition is not fulfilled by the heirs: for anyone is considered to wish to contract according to the laws.

But if civil codes do not agree with canon law, it must be noted that testaments and pious legacies are ruled by the dispositions of ecclesiastical law, not civil law. Wherefore impossible or base conditions (at least in the forum of conscience) are held as not added, even if the civil code has established otherwise.

d. A suspensive condition concerning a possible future suspends the consent and produces the obligation of awaiting and not impeding the event of the condition; but once the condition has been fulfilled, the obligation itself of the contract arises without any other consent; for example, I will give you half if my uncle leaves me a legacy. For if the condition is not fulfilled, the contract is null; but once the condition has been fulfilled, the contract becomes absolute without another consent.¹

Note. A contract entered under this suspensive condition is usually understood if there is speech of a conditioned contract.

¹ Cf. Ballerini-Palmieri VI, n. 265 ss.

542. II. Contract under an end or under a mode is said to be one in which one contracting party prescribes to the other to what end and use he must apply the thing accepted, and the other contracting party accepts this, for example, I give Titia one thousand so that she may enter a monastery. This contract does not suspend the obligation, but has force at once, with the end not yet fulfilled, because each contracting party consents to the contract and to the mode added. But it enjoins on the other contracting party the burden of fulfilling the end or mode added.

In this a contract under a condition differs from a contract under a mode: that the condition suspends the effect until the condition is fulfilled, but the mode or end does not suspend the effect, but adds the obligation of fulfilling the end. Hence if one is given one hundred so that he may celebrate one hundred Masses, the contract is perfected at once when the other accepts the thing, and once the money has been handed over the one accepting at once acquires ownership of it; but he is bound from justice to fulfill the mode added. But if afterward the mode or end is not fulfilled, especially in donations under a mode, attention must be paid to the intention of the giver. If from the words or circumstances of the donation it is established that he intended to obligate the donee to that end, the donation, when the end has not been furnished, is resolved and the gift must be restored. If he only intended to furnish the means for furnishing the end if it should please the donee, the gift can be retained, even if the end is not fulfilled.¹

¹ Cf. Lugo, disp. 23, n. 111; Lessius, l. 2, c. 18, n. 124 ss.

543. III. Contract under a cause is said to be one by which the motive of contracting is indicated, for example, I give you one hundred because you are my blood-relative. This contract is invalid if the added cause is lacking and is the principal and primary motive; it is not invalid if the cause is a secondary and merely impulsive motive.

544. IV. Contracts under a demonstration are called those in which the matter of the contract is not accurately determined, but is rather pointed out. Now if error occurs in designating the quantity of the matter, the contract must be interpreted differently according to the diversity of designation. For if the quantity is designated demonstratively, for example, I buy this cask containing five, nothing must be supplied; but if the quantity is designated taxatively, for example, I buy five which are contained in this cask, the defect must be supplied.

545. V. A contract entered to a day is said to be one in which the day of execution is designated. If the designated day is certainly going to come, the contract obliges at once, but execution does not oblige before the designated day, for example, I give one hundred to the parish church when my father dies. But if the designated day is not certainly future, the obligation is suspended as if the contract were conditioned, for example, I give you one hundred when my son enters religion.

a. Because in the first example the contract obliges at once, and therefore the right is transferred at once, if the giver died before the designated day, the obligation of executing the donation would pass to the heirs; but in the second example, if the giver died before the entrance of his son into religion, no obligation of giving would exist in the heirs.

b. By the particle if a condition is indeed usually expressed, but sometimes not a condition but the designation of time is set forth by it, as if someone says: I give you a gold coin if (that is, when) Titius pays me the rent.

Question Second. On Unilateral Contracts

Special contracts, of which a great number exists, can be recalled to three classes: a. to unilateral contracts; b. bilateral contracts of certain event; c. aleatory contracts. To unilateral contracts pertain donation, promise, and testament. Testaments are indeed not properly contracts; nevertheless they are usually counted among contracts and explained, because they closely approach gratuitous donation.

548. Its nature. 1. Donation is a contract by which ownership of some proper thing is transferred gratuitously to another.

a. He who gives is called the giver, but he to whom something is given is called the donee.

b. Donation by natural law is a consensual contract, which before the handing over of the thing given is substantially perfected by mutual consent alone.¹

c. Donation differs from promise (obliging from justice) in that donation transfers a right in the thing, whereas promise transfers only a right to receiving the thing, or a right to an action against the person of the promiser.

2. Donation must be made from one's own things; but because the goods of him who is unable to pay debts are not altogether his own, a donation made by him is indeed valid, but unjust.

a. The donation is valid but unjust both on the part of the giver and on the part of the one accepting, because the giver inflicts injury on creditors and the one accepting cooperates immediately in the injury; for creditors have a strict right of demanding that debts be paid to them from those goods.

b. The donee who, ignorant of the impotence of the giver, accepted the gift, is not bound to restitution; but the donee who, conscious of the impotence of the giver, accepted the gift, is bound to restitution of the gift, both if he induced him to make the donation and if he did not induce him. The reason for the first is that he acquires a right in the thing given, since the donation is valid; but he cooperated in the injury only materially. The reason for the second is that he cooperates immediately in a damaging injury, namely by an action which is not indifferent in itself but unjust.²

¹ From C.A. Section 943, in verbal donation ownership in the thing given is finally transferred by handing it over.

² Cf. Lugo, disp. 20, n. 116. The opinion of Lessius (l. 2, c. 20, n. 168) and Molina (disp. 328), namely that he is not bound to restitution who did not induce the giver to giving, seems to lack all probability.

549. Donation is divided: a. By reason of effect, into donation among the living, by which ownership of the thing given passes to the donee while each contracting party is still living; and donation because of death, by which ownership of the thing given finally passes to the donee after the death of the giver. Of this latter, which is a species of last will, there will be speech below; of the former, here.

Therefore that is not properly a donation because of death which is indeed made in view of death, but in such a way that it at once obtains an irrevocable effect. Of this kind are dispositions by which the sick give to relatives, servants, or friends movable or even immovable things.

b. By reason of motive, into merely gratuitous or purely liberal donation, which supposes no obligation in the giver, and remuneratory or antidotal donation, which supposes an obligation of gratitude in the giver.

Because remuneratory donation falls short somewhat from the strict concept of donation, it has happened that merely gratuitous donation alone is understood wherever donation is prohibited in canon law.

c. By reason of mode, into verbal donation, by which someone by words gives a thing to another, and real donation, by which someone gives a thing to another and at the same time hands it over.

Although a donation which is made in writing is properly a verbal donation, nevertheless the civil code distinguishes it from verbal donation.

550. Required conditions. By natural law a donation made by one person and accepted by another is valid.¹

a. In order that a donation be valid, the acceptance of the donee, and this externally manifested, is always required; hence a donation before acceptance can be revoked, even if it has been confirmed by oath: for an oath follows the nature of the act. Wherefore the opinion which Busenbaum considers probable, namely that a donation made to a pious cause is valid without acceptance, is contrary to natural law.²

b. Besides the offering and acceptance of the thing given, indeed by natural law nothing else is required for a valid donation; but positive law, which generally favors donations less and therefore renders them difficult, requires determinate conditions (manual donations being excepted). Donations which are contrary to the laws can be held valid in the forum of conscience before the sentence of the judge (n. 356).³

c. Donations made to pious causes are governed by canon law; hence if by civil law donations of this kind are declared void either absolutely or under certain conditions, in the forum of conscience even after the declaration of the judge they are valid, provided the conditions are present which natural law demands.

¹ In order that donation produce a civil obligation, from C.A. Section 943 either a public document or handing over of the thing is required; C.G. Section 518 establishes the same.

² Cf. St. Alphonsus, n. 725.

³ According to C.A. a donation made privately is valid, but according to other codes it is not valid.

551. The effect of donation is the transfer, and that of itself irrevocable, of ownership to the donee.

a. Since donation is a consensual contract, it is perfected by the mutual consent of the giver and of the one accepting; but ownership by positive law is generally transferred only by the handing over of the thing.

b. Although a donation valid in itself by natural law is irrevocable, by positive law in certain cases it can be revoked either wholly or in part. This especially holds in three cases: alpha. if the donee has been enormously ungrateful toward the giver; beta. if offspring has been born to the giver contrary to expectation; gamma. if by the donation the children are deprived of the legitimate part of the inheritance.

Other cases can be consulted in the codes.¹ Since these dispositions of law probably have force also in the internal forum, the giver can use them with a safe conscience, unless there is question of a donation made in favor of a pious cause. Therefore children after the death of the father can petition the judge for revocation of a donation, by reason of which they are deprived of the legitimate part.

Note. If the giver or the donee dies before the handing over of the thing, the same holds which above (n. 547) was said in the similar question concerning promise.

Article Third. On Testaments

Since a testament constitutes some mode of hereditary succession and at the same time a species of last wills, some things must be premised concerning each of these matters.

¹ C.A. Sections 947-954, where six cases are enumerated in which a donation can be revoked. C.G. treats this matter in Section 530 ss.

556. On last wills themselves. By the name of last will is understood that disposition by which someone establishes what he wishes to be done concerning his goods after his death.

1. All dispositions which are called last wills have this as proper to them, that he who disposes of his goods retains full ownership of them until death; wherefore these dispositions are by their nature revocable and have no force unless the will of the one disposing remains unchanged, so that in reality it is the last will.

2. The dispositions of last will have the force of transferring ownership not by the mediation of positive law, but by natural law itself.

Some thought that dispositions of last will have force for transferring ownership by positive law alone: for in order that they be able to transfer ownership by natural law, the mutual consent of the testator and heir is required; but that mutual consent cannot be had, since the testator's donation can be accepted only after his death. But from these things it indeed follows that ownership in this case is not transferred after the mode of a properly so-called contract, yet it is not proved that it is not transferred by natural law. And indeed the will of the testator disposes by natural law that the inheritance can be occupied or accepted by the heir alone, with every other excluded; this will, when the testator has died, perseveres morally, as it were inhering in the inheritance, so that the heir by natural law can occupy or accept the thing deferred to him. Therefore ownership in the inheritance is acquired by the disposition of the testator and by the occupation or acceptance of the heir.¹

3. In order that a disposition of last will be valid by natural law, nothing else is required except that the last will of the deceased be certainly known; but by positive law certain formalities are required, and if these are lacking, they have no force either simply or at least after the sentence of the judge.

The will of the testator can be certainly known either by writing, by which the last will of the testator is indubitably expressed, or by the assertion of witnesses.

4. Dispositions of last will made in favor of a pious cause are governed not by civil laws but by ecclesiastical laws: for the Church has the power of making laws of this kind and in fact has made them; now the Church holds dispositions of last wills which regard pious causes as valid, provided they are certainly known.²

In order that the last will of the testator be certainly known from testimony, the assertion of one witness is not sufficient, even if he is most worthy of trust, as a parish priest or confessor, even if confirmed by oath, unless to the testimony are added other signs of grave moment which confirm the assertion. For by canon law two legitimate witnesses are required for producing full proof.³

Whether the supreme pontiff or a bishop can commute the last wills of testators.

The last wills of the faithful regarding pious causes, as accepted by God, are held as holy and are equated with vows and oaths. Hence those who lack ecclesiastical jurisdiction in the external forum have no power over them. Therefore a parish priest, indeed even a bishop, cannot convert a legacy or testament constituted for a pious cause to another use, even a better one.

1. The supreme pontiff certainly can commute the last dispositions of testators to another use, since the administration of pious causes has been committed to him,⁴ yet not without a reasonable cause, because he is not their owner but administrator. By a like reason even the supreme prince can commute profane wills of testators from a just cause.

2. A bishop certainly cannot do this from any just and reasonable cause, as the supreme pontiff can, since exact execution of last wills is rather enjoined on him by law;⁵ but from a just and necessary cause, namely when the disposition of the deceased morally cannot be fulfilled, he can convert the last wills of the deceased, according to some indeed as a delegate of the apostolic see, as the Council of Trent disposes,⁶ but according to others only by epikeia and with the consent of the heir or of the legatee church.

Therefore this power belongs to a bishop in the following cases: a. if the money bequeathed for some use is not sufficient; b. if the thing bequeathed cannot serve for the determined use; c. if a legacy for a determined use is not necessary, as if it was left for making sacred vessels, which the church does not need, but it needs vestments; d. if ancient legacies, because the circumstances of times have changed, have either a useless use or one little conducive to the worship of God.

¹ Cf. Th. Meyer, l.c., n. 209.

² C. Relatum 11, De testamentis (III, 26); Sacred Penitentiary, June 23, 1844. Cf. Ballerini-Palmieri III, n. 983 ss.

³ C. Relatum 11, De testamentis (III, 26). Cf. Genicot I, n. 675.

⁴ C. Quia contingit 2, De relig. dom. (III, 11), Clem.

⁵ Council of Trent, sess. 22, c. 8, De reform.

⁶ Sess. 22, c. 6, De reform.

557. Division of last wills. Last wills are divided: a. into testaments; b. into codicils; c. into legacies; d. into fideicommissa; e. into donations because of death.

1. Testament is called a last will by which someone disposes of his goods, whether by instituting an heir or without the institution of an heir.

In Roman and Austrian law only that last will by which an heir is instituted is called a testament; but by recent law any disposition which someone makes concerning his goods for the time following his death is called a testament.

2. Codicil is called a disposition of last will by which something concerning a testament is explained or changed, by adding or subtracting.

Where the institution of an heir belongs to the nature of a testament, as in Roman law, a last will by which someone disposes of his goods without the institution of an heir is called a principal codicil, in order that it may be distinguished from an accessory codicil.

558. 3. Legacy is called a disposition of last will by which a determinate thing is left to someone directly, for example, I bequeath to Titius my farm. Directly: for if something is left to be attributed to someone indirectly, that is, through the heir, it is called a fideicommissum.

a. A legacy must be made concerning a determinate thing, such as a house, farm, sum of money. b. The legatee, as soon as the heir has entered upon the inheritance, acquires ownership of the legacy; yet he cannot occupy it by his own authority, but must wait until it is handed over to him by the heir. c. A profane legacy, according to the opinion of some, follows the nature and conditions of the testament; if therefore the testament is void because of defect of some solemnity, the legacy also is void; but according to the opinion of others it is equated with a pious legacy. A pious legacy always obliges in conscience, provided the will of the legator is certainly known (556, 3).

4. Fideicommissum is a last will by which the heir is ordered to leave something to another, whether this is the whole inheritance or part of it or some particular thing, for example, I will that Gaius the heir give this farm of mine to Titius.

From this fideicommissum must be distinguished the fideicommissum of a family, or that disposition by which an inheritance is declared to be an inalienable good of the family, which must be transmitted within the same family, either to the firstborn of the older line, or to the nearer blood-relative, or to the older by birth. This fideicommissum cannot be constituted without the consent of the legislator and receives binding force in conscience through positive law.¹

¹ C.A. establishes laws concerning this fideicommissum in Sections 618-646; C.G., Einfuhrungsgesetz 59.

559. 5. Donation because of death is called a disposition of last will by which something is given to another in such a way that the donation obtains its effect after the death of the giver.

a. In order that a donation because of death be valid by natural law, nothing else is required except that alpha. there be a true donation, not only a promise of donation; beta. that acceptance of the donee be present: for donation because of death differs from other last wills in this, that while the giver is living it must be accepted by the donee and gives him a right to the thing, or rather in the thing; but in this it agrees with them, that only when the giver has died does it receive force, and therefore it can still always be revoked;¹ gamma. that it be certain that the donation has not been revoked.

b. He to whom a donation because of death of a movable thing has been made can, when the giver has died, secretly take it for himself, provided it is certainly known that there was a true donation: for this donation differs from a legacy in this, that the thing given is left not as to be paid by the heir, but as to be accepted by the donee as his own; since, when the giver has died, the donee has a right in the thing concerning the gift left to him.

c. If the donee dies before the giver, the donation is considered revoked, so that it does not pass to his heirs, because the giver is considered to have intended only the donee.

Note. Where the civil code does not admit donations because of death: a. a donation which is made to pious causes is valid; b. a donation which is made to profane causes is probably valid by natural law before the sentence of the judge, but by positive law can be made void through the sentence of the judge. Hence before the sentence of the judge the donee can accept the thing given and retain it once accepted; but the heir is not bound to hand the thing over to the donee.²

¹ Cf. nevertheless C.A. Section 956; C.G. Section 2301.

² Cf. Gury, Compendium th. mor. I, n. 835; Casus consc. I, n. 811 ss.

560. Division. a. Into solemn testament, which is furnished with certain formalities prescribed by law, and non-solemn testament, which lacks these formalities. A non-solemn testament is either ordinary, which without formalities has no force at least in the external forum, or privileged, which has force without solemnities, as is, for example, a testament made by a soldier, or on a sea voyage, or in time of plague.

b. Into written and nuncupative, according as it is drawn up in writing or is made only orally without writing.

c. Into judicial and extrajudicial, according as it is made with the intervention of a judge or notary, or without the intervention of a judge.

d. A holographic testament is admitted both by C.A. and C.G., if it is written wholly by the testator's own hand and signed with his name and surname, with the addition of the year, month, and day.

Note. The formalities which must be observed from law, in order that a testament obtain full value, are prescribed as very many and diverse by diverse codes; wherefore they cannot be enumerated here, but must be learned from the codes themselves.

561. On the value of an informal testament. 1. Testaments which lack legal form are certainly valid if they have been made for pious causes, provided the will of the testator is certainly known (n. 556).

a. Whether a profane legacy which is contained in an informal pious testament is valid is controversial. The reason for denying it is that these testaments are valid only from the will of the supreme pontiff, who does not care for profane causes and therefore does not convalidate profane legacies. The reason for affirming it is this: testaments to pious causes are valid not so much from the will of the pontiff as by natural law, because namely the will of the testator is certainly known; but the will of the testator is certainly known also as to profane legacies; therefore these also are valid by the same natural law and therefore must be committed to execution.¹

b. If the faithful have persuaded themselves that even pious testaments and legacies are of no value where they lack the solemnity of civil law or are rescinded by the judge, the confessor can abstain from admonition, which is foreseen as more likely to harm than to profit, lest they retain in bad faith what they possess in good faith.

2. Informal testaments to profane causes before the sentence of a judge invalidating them are probably valid according to recent laws, unless by them the right of a necessary heir is injured.²

From this doctrine the following things are now inferred:

a. An heir from a testament valid by natural law but destitute of legal form alpha. can enter upon the inheritance; beta. is not bound to warn the heir from intestacy about the defect of the testament; gamma. is not bound to restore the goods of the deceased to the heir from intestacy before the sentence of the judge, even if the heir petitions these goods; yet if he petitions them before a judge, and the defect of the testament is certain, charity demands that the goods be handed over to him, lest he be forced to incur great expenses in vain; delta. the sentence of the judge must be observed in conscience.

b. An heir from intestacy can licitly impugn an informal testament before a judge, and he has the same right not to be impeded by frauds in obtaining a just sentence. Therefore the heir from an informal testament acts unjustly who, for example, in a holographic testament lacking the testator's signature, supplies this with his own hand.³

Note. The Sacred Penitentiary considers informal pious testaments and legacies generally as valid for the forum of conscience; nevertheless the heir is easily admitted to composition with the pious cause in whose favor the legacy or testament had been made.⁴ In this case the supreme pontiff remits the obligation of paying the legacy under this condition, that a small alms be given to the pious cause.

¹ Cf. Lugo, disp. 22, n. 274.

² Cf. Marres, De iustitia^2 (Ruraemond: Romen, 1889), I, n. 367 ss. Delama (n. 95) judges that C.A. does not invalidate testaments destitute of legal forms; authors think the same about most modern codes.

³ Cf. Gury, Compendium th. mor. I, n. 819, 4.

⁴ Sacred Penitentiary, Jan. 10, 1901.

562. Obligations of the testator. 1. Of itself no obligation of making a testament exists, since strict duties can also be satisfied through succession from intestacy. Yet per accidens this obligation can be present, for example, because of restitution owed to someone, or because of lawsuits and dissensions which are deservedly feared and cannot be forestalled in another way.

2. By natural law he must leave to his children, if he has anything, only as much as is needed that they may live according to their state; concerning the rest it is permitted to him to dispose according to his judgment. The portion to be left to children is determined more accurately by positive law.¹

3. To necessary heirs he must leave the legitimate part of the inheritance determined by civil law, unless they are unworthy:² for the civil law which determines for children of the family a legitimate part from paternal goods obliges in conscience and from justice.

a. A father who without just cause deprives a son of the legitimate part sins gravely, and the heirs are bound to return that part. But if without a just cause he favors one son before the rest, to whom he leaves only the legitimate part, he certainly sins, but only lightly; if from a just cause he favors one, he does not sin at all. Now there is a just cause for leaving more to the firstborn son than to the others.

b. Since the law which determines the legitimate part to be allotted to children obliges in conscience, a father of himself sins against justice who either by testament or by donations made without just cause injures the legitimate part of the children. Yet from mere revenues, with the patrimony or capital intact, donations can be made at pleasure: for by these the legitimate portion of the children is not injured, because parents are not bound to increase the patrimony for their children.³

c. He who either by testament or donation accepted something by which the legitimate part of the children is injured is, strictly speaking, bound to restitution, yet not before the sentence of the judge, because the law does not declare dispositions of this kind absolutely void.⁴

4. By natural law he is bound under grave obligation to leave to a wife, brothers, and sisters who are gravely in need as much as suffices for relieving their grave need; to brothers and sisters who are simply poor, and likewise to other relatives gravely in need, he is bound to assist only under light obligation.

Because this obligation indirectly affects the very goods of the deceased, the obligation also passes with the goods to the heirs.⁵

Whether expenses made for studies must be deducted as a part of the inheritance already received. They are not to be deducted, but rather to be considered as gifts conferred by the father, unless the father openly signified that they were not to be disregarded in the division of the inheritance.

a. Expenses made for children which redound to the common good of the family are not to be deducted in the division of the inheritance; but expenses made for studies or for attaining a dignity or for freeing a useful son of the family from military service redound to the good of the family.⁶ Civil law agrees with this doctrine.⁷

b. If expenses made for a son in studies, considering the condition of the parents, are extraordinarily great, in the judgment of some they must be brought into the common inheritance; yet the same authors warn that this is founded not on strict right, but only on natural equity.⁸

5. Blood-relatives who are neither necessary heirs nor poor can licitly be passed over in a testament; hence, with blood-relatives passed over, remaining goods can be given to pious causes without sin.

¹ C.A. Section 765 s.; C.G. Section 1922 ss.

² C.A. Section 540 ss. and C.G. Section 2333 ss. determine who can be deprived of inheritance because of unworthiness. Nevertheless there remains in parents an obligation of piety of providing even for unworthy children the necessities of life, if they cannot provide for themselves.

³ Cf. Gury, Compendium th. mor. I, n. 827 s.

⁴ Lugo, disp. 23, n. 147. Cf. St. Alphonsus, l. 3, n. 740.

⁵ Lugo, disp. 23, n. 100.

⁶ St. Alphonsus, l. 3, n. 955; Lehmkuhl I, n. 1169.

⁷ C.A. Sections 788-792.

⁸ Cf. Lehmkuhl I, n. 1169.

563. On revocation of a testament. Since a testament by its nature can always be revoked or changed as long as the testator lives, it is asked what is effected by a promise not to revoke it, especially where it has been confirmed by oath.

1. A promise not to revoke a testament is null by civil law: therefore he who made this promise does not lose the right of changing the testament, even if the promisee on his part had made another promise, even if, for example, when the husband promised, the spouse in turn had promised that she would not change her testament: for private persons cannot despoil themselves of a right which is conceded to them by a law made for the common good.

2. If an oath has been added to the promise, one must distinguish whether there is question of a testament to profane causes or of a testament to pious causes.

a. If there is question of a testament to profane causes, the oath is null (n. 540), and therefore neither confirms the promise nor obliges one to observe it from religion.

b. If there is question of a testament to pious causes, the oath is valid and induces an obligation from religion of observing the promise and not revoking the testament.¹

Question Third. On Bilateral Contracts of Certain Event

Bilateral contracts of certain event are: deposit, commodatum, mandate, mutuum, purchase-sale, lease-hire, partnership, exchange.

¹ Cf. Ballerini-Palmieri III, n. 967 ss.

564. Notion. Deposit (Verwahrungsvertrag) is a contract by which some thing is received to be guarded and to be restored in kind to the one handing it over.

a. He who deposits a thing is called the depositor, but he with whom the thing is deposited is called the depositary.

b. Deposit can be a gratuitous or onerous contract, according as the depositary undertakes custody of the thing gratuitously or for payment. There are those who say that deposit by its nature is a gratuitous contract, because it is done only for the advantage of the depositor. Hence if payment is required for the custody of the thing, there is not a contract of deposit, but an onerous contract of lease of work. Yet all concede that almost the same obligations exist in each case, both as to the right of the depositor and of the depositary, except that the depositary who accepts payment is bound to guard the thing deposited with greater diligence.

c. Deposit is a real contract, which is perfected only by the real handing over of the thing to be guarded.¹

d. Sometimes it is sufficient that the depositary tacitly consent to the contract; if, for example, travelers deposit their things on a ship or in a house or in a carriage, sailors, innkeepers, and drivers, by the very fact that they see the things being deposited and do not contradict it, tacitly undertake to guard them. Those who practice the carrying of things (die Frachtfuhrer) also undertake their custody when the things to be transported are handed over to them.

¹ C.A. Section 957; C.G. Section 688.

565. Obligations of the depositary. a. The depositary in the custody of the thing is bound to employ that diligence which he is accustomed to employ in guarding a thing of his own of equal value; but he is not bound to employ greater diligence. Therefore in a common danger, for example, of fire or theft, he is not bound to prefer the thing deposited, even if more precious, to his own things, unless he has either expressly obligated himself to this, or stipulated payment for the custody, or the deposit was made solely in favor of the depositary.

b. The depositary cannot use the thing deposited except from the expressed or tacit, or at least reasonably presumed, will of the depositor: for it is not licit to use another's thing without the consent of the owner. The consent of the depositor can be presumed if the thing deposited undergoes no danger and does not become worse from the use.

alpha. To use a thing deposited which is consumed by use, as money, is not a grave sin, provided the depositary is certain that he can restore a thing of the same value; but the depositary commits a grave sin against the conditions of the contract if in this way he exposes himself to the danger of impotence for restoring.

beta. Yet if the depositary illicitly uses the thing deposited, for example, money for business, he can retain the profit received from it, because it is the fruit of his own industry. He is bound only to compensate the damage, if any, which the depositor suffered from the illicit use of the thing.¹

c. The depositary must restore the thing deposited when it is sought by the depositor, whether the time for returning the thing was determined or not; but he cannot return it earlier if the time for guarding the thing had been determined. Nevertheless he is not bound to return the thing deposited: alpha. if he certainly knows that the thing is stolen, because he would cooperate in continuing injury against the owner of the thing; beta. if he knows that the depositor is going to abuse his thing, for example, a sword for killing an enemy, because he would cooperate in inflicting injury; gamma. if the depositor refuses to pay the compensation which the depositary can justly require.

Hence if the depositary refuses to return the thing deposited except in these cases, he commits sin and is bound to repair the damages which arose from this for the owner; and if the thing itself suffers damage from a fortuitous event which it would not have suffered with the owner, he is likewise bound to repair that, for he retains another's thing against the will of the owner reasonably unwilling.

d. He is bound to repair the damage which the thing deposited has suffered: and indeed, if it suffered it because of his grave theological fault, before the sentence of the judge; if it suffered it because of his juridical fault, after the sentence of the judge. But damage which the thing has suffered without any fault of his he is not bound to repair, unless he expressly undertook every danger of the thing upon himself.

¹ C.G. Section 698 differs in this matter from other codes.

566. Obligations of the depositor. The depositor is bound: a. to pay the expenses which the depositary must undergo in guarding the thing; b. to repair the damages which have come to the depositary because of the deposit, and indeed before the sentence of the judge if they have come from theological fault, after the sentence of the judge if from juridical fault only.

567. Sequestration is a species of deposit and is defined: a contract by which a disputed thing is deposited with a third party under this condition, that when the lawsuit has been decided it be restored to the owner.

A distinction is made between conventional sequestration, which is constituted by the private will of the litigants, and judicial sequestration, which is constituted by a judge from office.

He with whom the disputed thing is deposited is called the sequestrator. His obligations are: a. he cannot lay down the office undertaken except from a grave and just cause; b. while the lawsuit has not yet been decided, he cannot return either the whole or a part to one of the depositors.

568. Notion. Commodatum (Leihvertrag) is a contract by which a thing is conceded to another for use alone for a certain time, with the obligation of restoring the same thing after use.

a. He who concedes the thing to another is called the lender for use, but he to whom the thing is conceded for use is called the borrower for use.

b. Commodatum is a gratuitous contract: for if the use of a thing is conceded to another for payment, the contract is rather called lease, even if the thing conceded for use is movable.

c. Commodatum is a real contract, which is essentially perfected only by the handing over of the thing.¹

d. The object of this contract can be a movable or immovable thing, provided it is not consumed by use, since it must be returned to the lender for use in its individuality.

e. The time during which the commodatum lasts can be determined either expressly or implicitly; and indeed it is determined implicitly if the thing is conceded for a use which by its nature lasts for a certain time.

f. Commodatum differs from precarium (Bittleihen): for precarium is a contract by which a thing conceded for use can be reclaimed at any time at the pleasure of the one conceding it; on the contrary, in commodatum a thing is conceded for a certain time, so that before the time has elapsed it cannot be reclaimed.

¹ C.A. Section 671 grants a civil action to him to whom a promise has been made concerning a thing to be lent for use.

569. Obligations of the borrower for use. a. The borrower for use, who accepted the thing for a certain use, cannot apply it to another use without acting against the contract and therefore committing injustice and being bound to repair the damage, if any, which the owner suffered from it.

b. The borrower for use must bear the ordinary expenses which the use of the thing requires, for example, he must feed a horse lent for use, but not extraordinary expenses, for example, the price of curing a sick horse, which is necessary without his fault.

c. He is bound to guard the thing lent for use diligently, and indeed with greater diligence than a depositary, because the contract redounds solely to his own utility. Hence he is bound to compensate the damages which the thing suffers from his theological fault, and after the sentence of the judge also those which it suffers from merely juridical fault; yet he is not bound to compensate the deterioration which the thing necessarily suffers from licit use.

d. He must restore the thing at the time determined either explicitly or implicitly, even if it is not demanded by the lender for use, because beyond that time he does not have use of the thing; but before the established time he cannot restore the thing against the will of the lender for use.

But if he retains the thing beyond the established time, he must compensate every deterioration which the thing suffers even from a merely fortuitous event, with the sole deterioration excepted which it would have suffered even with the lender for use. Moreover he must compensate the owner for ceasing profit and emergent damage, because he is the unjust cause of these.

e. The deterioration which the thing lent for use suffers from a merely fortuitous event must of itself be borne by the lender for use, because he himself is the owner of the thing; but the deterioration which the thing suffers when the borrower for use applies it to another use than the contract permits, the borrower for use himself must bear.

Whether the borrower for use in this last case, if theological fault was absent, must repair the damage before the sentence of the judge or after the sentence depends on the tenor of the law. Most codes seem to be understood so that they confer on the lender for use only the right of requiring compensation through the judge.

Example. Titius borrows from Sempronius at harvest time a horse for carrying in grain. Since at the same time a theft is committed in the house of Titius, he uses the borrowed horse to pursue the thief; but behold, from a grave wound received by chance, the horse dies.¹

¹ Lehmkuhl, Das burgerl. Gesetzbuch^2 (Freiburg: Herder, 1900), Section 603; Marres IV, n. 110.

570. Obligations of the lender for use. a. He is bound to disclose to the borrower for use the harmful defects of the thing; but if he omits this in bad faith, he is bound to repair the damage which arises from it for the borrower for use.

b. He must pay the extraordinary expenses which the borrower for use must make in order to preserve the thing, provided they arose without the fault of the borrower for use.

c. He cannot without injury reclaim the thing before the established time, except in the case in which the lender for use himself, from an unforeseen cause, immediately needs his own thing:¹ for he is not considered to have obligated himself not to reclaim the thing in this case.

d. If the thing perishes with the borrower for use without his fault or culpable delay, it perishes to the owner, or lender for use.

¹ C.A. Section 976 does not admit this; on the contrary, C.G. Section 605 does.

Particular ecclesiastical laws are made for particular countries, or provinces, or dioceses, by the competent authority, and bind all subjects living within the territories in question. One is subject to local law by having a domicile or quasi-domicile in the territory for which the law is made. To constitute a domicile in ecclesiastical law, two conditions are required. The person domiciled must have taken up his abode in a parish, or quasi-parish, or at least in a diocese, vicariate apostolic, or prefecture apostolic; and this abode must be joined either with the intention of perpetually remaining there, if they are not called away, or with the actual dwelling there for ten years.

A quasi-domicile is acquired by taking up his abode in the place as above, joined with the intention of remaining there for the greater part of a year if not called away, or with the actual dwelling there for the greater part of a year.

A domicile and a quasi-domicile are lost by those who have them leaving their abode with the intention of not returning there; but wives always retain the domicile of their husbands unless they are lawfully separated from them, and minors that of their guardians (Can. 13, 92, 93, 95).

Whoever, then, resides in a place, having therein a domicile or quasi-domicile is subject to the particular laws of that place. Contracts, too, are governed by the law of the place where they are made, and whoever commits a crime is amenable to the law of the country where it is committed.

While outside the limits of the territory in which one is domiciled, there is no obligation to obey the particular laws of that territory, for the law is territorial and does not bind beyond the limits of the territory for which it was made.

A stranger (peregrinus), or one who has a domicile in another place, but at present is staying elsewhere, is not bound by the particular laws of the place where he is staying; for he is not subject to their authority by having either a domicile or a quasi-domicile in the place, And so, if an English Catholic happened to be in Dublin on the feast of St Patrick, which is kept there as a day of obligation, he would not be bound to hear Mass; nor would a Dublin man who happened to be staying on that day in England. However, a stranger staying in a place where the common law of the Church is observed is bound to act according to its provisions, though there may be a dispensation from its observance in the place where he has his domicile. And so an English Catholic staying in Rome should abstain from flesh meat on Saturday as well as on Friday in Ember week. Moreover, any contracts that he may enter into or crimes that he may commit subject him to the laws of the country where he is staying in those respects (Can. 14).

Homeless people (vagi) are bound by the general and particular laws which are in force in the place where they are staying (Can. 14, sec. 2).

Regulars and their monasteries are exempt from episcopal authority, and so in general are not subject to the laws made by the Bishops for their dioceses. There are, however, many exceptions to this general rule, for in spite of their exemption regulars have in special cases been subjected by the Holy See to the ordinary or else delegated authority of diocesan Bishops. The special cases are treated of by canonists (Can. 615).

Rights may be acquired by one person from another when the latter voluntarily surrenders them in favour of him by whom they are freely accepted. This is done by contract, which may be defined as an agreement by which one or more persons bind themselves to do, give, or forbear something in favour of one or more other persons.

Contracts are express or implied. Express contracts are entered into by word of mouth or by writing. Implied contracts are formed by the virtual or implied consent of the parties. Thus, whenever a person undertakes an office he virtually agrees to perform all the duties annexed to it by law or custom, or which the nature of it demands. These latter are also called quasi-contracts.

By a unilateral contract one only of the parties becomes subject to an obligation, as by a simple promise to do something in favour of another. A bilateral contract, such as that of sale, imposes an obligation on both parties.

A gratuitous contract confers advantage on one of the parties only, though both may incur an obligation by it. An onerous contract confers advantage on both parties. Thus, if I lend my horse to a neighbour for the day, he alone derives advantage from the contract, though I am bound not to demand the horse back until the appointed time arrives. If the contract is one of hiring, both parties derive advantage from it, and both are laid under obligations by it.

A consensual contract is formed by the mere consent of the parties, a real contract by the delivery of the object of the agreement.

A solemn or formal contract is entered into with the formalities required by law. A simple contract has no such formalities. In English law some simple contracts give no right of action unless they are in writing, or unless they have some other adjunct which serves as evidence of the contract. Thus by the Sale of Goods Act, 1893, sec. 4, “a contract for the sale of any goods of the value of ten pounds or upwards shall not be enforceable by action unless the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract be made and signed by the party to be charged or his agent in that behalf.”” In these cases the law does not annul the contract if it is destitute of the legal requirements, or make it voidable; it only renders it unenforceable in the courts of law. The only formal or specialty contract in English law is the deed. A deed is a document in writing or printed on paper or parchment. It is executed or made conclusive between the parties by being signed, sealed, and delivered. The seal is often affixed to the deed beforehand, and this is executed and made operative by the party whose deed it is placing his finger on the seal and saying, ‘‘ I deliver this as my act and deed.”¹

¹ Anson, Law of Contract, p. 51.

In moral theology we have chiefly in view the natural obligation in conscience which arises from every true contract to act in accordance with the agreement entered into. That obligation is one of justice, for a contract gives a strict right in justice to the fulfilment of the agreement. We cannot, however, afford to neglect positive law, ecclesiastical and civil, especially in the matter of contracts. It is a received axiom that contracts are governed by the law of the country. So that a question for consideration arises here, whether positive laws, which require certain contracts to have a special form for their validity, bind the conscience, so that if they are informal they are null and void in conscience as they are in law.

No difficulty exists with regard to contracts which are governed by ecclesiastical law. The effect of the Tridentine law, which makes marriage null and void if not contracted in presence of the parish priest and of two witnesses, is clear from its terms. The same is true of other ecclesiastical laws which annul contracts. A difficulty arises only with regard to civil law, which does not usually explain whether defect of form in specialty contracts merely affects the legal obligation, or whether it affects also the natural obligation, making the contract null and void in conscience, so that no rights or obligations of any kind arise under it.

The civil authority can certainly make laws which would have that effect in its own department, as all admit. It is a - question of fact as to what is the effect of such voiding laws in any particular system of jurisprudence. It is a well-established opinion among English moralists that English laws which make acts void for want of legal form do not absolutely and at once annul the act, but only make it voidable.¹1 So that defect of form in deeds and testaments will not prevent them from taking effect according to the intention of him who made them. If, however, it be the interest of someone to have the informal act set aside, he may use the benefit which the law gives and set it aside, provided that there is no fraud. Modern theologians commonly hold this opinion concerning the effect of voiding laws in other modern systems of legislation.

¹ Jeremy Taylor, Ductor dubit., bk. 2, c. 1, r. 5, n. 22.

From the definition of contract it is clear that its essential elements are: (1) The consent of the parties; (2) parties who are capable of giving a valid consent; (3) the subject-matter of the agreement. These will form the subject of the three following chapters.

The law of the country concerning contracts is canonizea by Canon 1529, which is as follows: “‘ Let the same be observed in canon law in ecclesiastical matters with the same effects which the civil law in the country lays down concerning contracts both in general and in particular, whether nominate or innominate, and about payments, unless it is contrary to divine law, or it is otherwise determined by canon law.”

THE consent of the parties is the efficient and formal cause of a contract. When the two wills meet together and agree on the matter of the contract, the contract is formed. In order to produce its effect this consent must have certain qualities; it must be deliberate and free, mutual, internal as well as external.

It must be deliberate, for a contract imposes a perfect and serious obligation on the parties, an obligation which they voluntarily take upon themselves, and which is not imposed from without. Now such an obligation cannot arise from a semi-deliberate act; full and perfect deliberation is required to give rise to a full and perfect obligation which is voluntarily undertaken.

It must be free, not unjustly forced; for an obligation which binds in justice cannot arise from injustice.

It must be mutual, for a contract is the agreement of two wills. It is not necessary that consent be given at the same time by both parties. Provided that one of them has consented previously and his consent still endures, the contract will be formed when the other party gives his consent, for then there will be the agreement of the two wills.

It must be internal, for a contract is an agreement of wills; one renounces a right in favour of the other who accepts it, and this requires an internal act of the will. If the internal act be wanting, we may have a seeming contract, a contract in appearance, a fictitious but not a real contract. Inasmuch as a fictitious contract is no contract at all, it cannot as a contract bind the conscience, and so one who enters into a contract without intending to bind himself is not bound by it. He is, however, guilty of deception and fraud, and on this ground he is bound to indemnify the other party for any damage that he has caused him by his sinful and unjust action; and if the only means of doing this is for him to fulfil the terms of the contract, he will be bound in justice to do that. When a contract is entered into without the intention of fulfilling its obligations, there is no contradiction here as in the former case; the contract exists, and its obligations must be faithfully executed.

‘Internal consent is not sufficient of itself to form a contract; it must also be outwardly manifested to the other party in order that he may know that his offer has been accepted and that there is mutual agreement. In other words, the consent must be external as well as internal. This internal and external agreement of the parties to a contract is brought about by an offer being made by one of them and accepted by the other. As soon as acceptance is externally manifested, all the requisites for a contract are present, and it forthwith springs into existence, even though the offeror does not yet know of the acceptance of the offeree. English law accepts this doctrine so far as to decide that “‘ if acceptance through the post is expressly or by implication prescribed or permitted by the offeror, acceptance is made, and the contract is concluded, at the moment when an acceptance is duly posted for transmission to the offeror, even though the acceptance is delayed or lost in the post.”¹ Ordinarily, however, acceptance is not complete until it is communicated to the offeror.²

¹ Digest of English Civil Law, n. 198.

² ibid., n. 196.

Mistake concerning what was principally intended in the contract is said to be substantial, and it renders the contract null and void, for there is then no agreement of wills in the same matter. Thus, if one of the parties thinks that the contract is one of hiring, while the other thinks it is a sale, the mistake is substantial, and there is no contract. Similarly, mistake about the matter of the contract is substantial, and Vitiates it, as if one thinks he is buying gold, while the other knows that it is brass. Mere ignorance as to what the object was would not make the contract invalid. Again, if one of the parties makes his consent conditional on some definite point, there will be no consent and no contract if the condition is not verified. Mistake concerning the other party to the contract is as a rule not substantial, and does not vitiate the contract. In marriage, however, and in gratuitous contracts in favour of a certain person for purely personal reasons, mistake about the person of the other party is substantial. Even in onerous contracts mistake about the person with whom the contract is made may be substantial in special circumstances, when for particular reasons the consent is given only to a definite person.

Mistake about what is accessory and accidental in a contract does not invalidate it, for there is agreement about what is substantial and essential. Even if the party would not have entered into the contract if he had not been under a mistake about some matter which is accidental to it and not substantial, still the contract is valid, for, in fact, he gave his consent; unless, of course, he only gave consent conditionally, on some supposition which was not verified.

If, however, one of the parties was induced to give his consent by the fraud or misrepresentation of the other, and he would not otherwise have entered into the contract, the contract is voidable at the option of him who was deceived. The law of nature seems to indicate this as a suitable means of repairing the injury done by the fraud, and it is confirmed by English civil law.

Even if there be no fraud or misrepresentation but only non-disclosure of facts which it was of importance for the other party to know, this will suffice to enable the party who had a right to full knowledge to avoid contracts of marine, fire, and life insurance, for the sale of land, for family settlements, and for the allotment of shares in companies. are in English law said to be uberrimae fidei. Such contracts

A contract is also voidable at the option of one of the parties who has entered into it under duress—i.e., actual or threatened violence affecting the contracting party, or his wife, parent, or child, and inflicted by the other party to the contract, or by someone acting with his knowledge and for his advantage. Fear caused in other ways does not invalidate the contract or make it voidable, unless it was so great as to deprive the contracting party of the use of reason. When one of the parties stands to the other in the relation of parent, guardian, trustee, medical attendant, legal adviser, spiritual director, or the like, any contract between them by which the one in authority obtains benefit or advantage may, according to English law, be set aside by the other on the ground of undue influence, unless it can be shown that the transaction was fair. The burden of proving this rests on the superior, who will seldom be successful unless he can show that the other had access at least to independent advice,

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.

THE subject-matter of a contract must be something that is possible, for there can be no obligation to do what is impossible. Mere inability, however, to perform what one promised must not be confounded with impossibility. If the performance of a contract is contrary to the course of nature, it is void. No one can bind himself by contract to visit and report on the other side of the moon.

If at the time of concluding the contract the performance of it was impossible in fact, it is not void unless the parties contracted conditionally upon performance being possible in fact. The contract also remains valid if it was possible at the time of concluding it, but subsequently it becomes impossible without fault of either party, unless the parties intended that the contract should cease to be binding if performance became impossible, ‘This intention is presumed when the possibility of performance was known by the parties to depend upon the continued existence of some thing, condition, or state of things, which has ceased to exist, and when the performance becomes impossible by reason of the death or illness of one of the parties, in the case of an agreement relating to personal services to be rendered by that party.¹

When the performance of a contract is or becomes in part possible and in part impossible, it is a question of intention, depending in each case on usage and construction, whether the partial impossibility avoids or discharges the contract.

¹ Digest, n. 294 ff.

The matter of a contract must either exist or there must at least be some probability of its future existence when the contract is entered into, otherwise there is nothing of value and no right to transfer, and a necessary condition for a contract to come into existence is wanting.

The matter must be determinate or capable at least of being determined, otherwise the terms of the contract will be too vague, and no agreement of wills on the same matter is possible.

The matter must be something of which the contracting party has the disposal, or of which he will have the disposal when the contract has to be executed, for he cannot transfer to another what he cannot dispose of. When an object is already due to another in justice, its transfer to him cannot form the matter of a new contract, and so if a judge sells justice to a litigant he is bound to restore the bribe, to which he has no title... One may, however, enter into a contract with a third person to do what is already owing in justice to someone else, provided that both obtain their full rights. A doctor, for example, may charge next-door neighbours the full fee for a visit to each, though he has only the trouble and expense of one journey. Similarly, what is already due, not in justice but out of charity or some other virtue, may form the matter of contract.

There can be no obligation to do what is wrong, and so. the matter of a contract must be something which is lawful and honest. It is obvious that a contract to do what is forbidden by the moral law is invalid. If, however, such a contract has been executed and the crime committed by one of the parties, the question arises whether he has a right to the money or other compensation which was promised, and which, as we suppose, may be received without sin. There are two opinions about this question. Some theologians hold that no such right can exist, for the contract was invalid from the beginning and remains so; mere lapse of time cannot make it valid. On the other hand, many great authorities maintain that the actual doing of the sinful action in favour of one party to whom it is agreeable, and to whom it affords advantage of some sort, is the concluding of an innominate contract, and gives the party who did it a claim in justice to the compensation promised. Both views are probable, and so after the sin has been committed, and consideration for it has been paid, there will be no obligation to make restitution.

Sometimes the Church forbids a contract under pain of sin only, and then such contract will be unlawful but valid, as is a mixed marriage without the requisite dispensation; sometimes she forbids a contract and also invalidates it, as she does clandestine marriages.

There are some contracts which are illegal in English law, and yet they are valid in common estimation. This is the case with betting, and so if the contract is valid according to the law of nature, it will be obligatory in conscience, though unenforceable by English law. Other illegal contracts which are forbidden by the civil law of England are not thereby made invalid in conscience if they are valid by the law of nature. The law merely affects the external legality of the contract which it refuses to enforce. If, however, one who has entered into such a contract wishes for good reason to avoid it, and acts without fraud or injustice to the other party, he may take advantage of the law and rescind his contract.

This doctrine is in keeping with what has already been said in similar questions concerning the effect of civil law and with the views of modern theologians on the subject.

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.

THE obligation arising from a contract may cease to exist in several ways:

By mutual agreement, by which each party renounces his rights under the contract. Cessation of contract by merger of one in another, or by substitution of one for another, may be classed under this head.

A contract ceases by performance when each party has wholly performed his duty under it.

When a contract consists of reciprocal promises, and one party fails to perform, or clearly expresses an intention not to perform, or disables himself from performing his promise, the other party may, at his option, treat the contract as at an end, and it is thereby discharged. Failing this, the injured party continues liable to perform his part, but he may claim damages for breach of contract by the other.

A contract which has for its object the rendering of a personal service is discharged by the death or incapacitating illness of the promisor.

There is no prescription against the obligation of a contract in English law, but a trustee in bankruptcy may repudiate the contracts of the bankrupt if they appear to be unprofitable.

A SIMPLE promise is a unilateral and gratuitous contract by which the promisor binds himself to do something for another.

English law will not enforce a simple promise for which no valuable consideration was given and which was not entered into by deed. In truth, a simple promise is hardly considered to be a contract, inasmuch as this term is confined to such agreements as the law will enforce. However, in the forum of conscience a simple promise begets an obligation to fulfil it, for an honest man is faithful to his promises.

The mere expression of an intention or of a purpose to do something must be distinguished from a true promise. No new obligation is created by the former, whereas a promise imposes on the promisor a new obligation. This obligation arises from his intention to bind himself by his promise which must be made known to, and accepted by, the promisee. Until acceptance there is merely an offer, which may be revoked at will by the offeror; when the offer is accepted the promise becomes a binding contract.

There is a dispute among theologians concerning the kind and quality of the obligation imposed by a simple promise. An onerous promise for which consideration is given by the other party and mutual promises bind in justice, and consequently under pain of grievous sin in serious matter. Similarly, where the promisee has been led to rely on a promise, and would suffer serious loss unless the promise were fulfilled, the promisor will be under a grave obligation to fulfil it. Apart from these circumstances the obligation of a simple promise will depend on the intention of the promisor. If he intended to give the promisee a strict right to what was promised, he will be bound in justice; otherwise he will only be bound by the virtue of fidelity, which is a self-regarding virtue, and imposes an obligation to make the fact agree with one’s word. The virtue of fidelity of itself only binds under pain of venial sin.

A promise will cease to bind if some event takes place or becomes known subsequently which would have prevented the promisor from making the promise if it had happened or been known beforehand. For a simple promise is essentially conditional; the promisor binds himself to do something under certain suppositions and in certain circumstances; if those suppositions are not verified, or if the circumstances become changed, the obligation of the promise ceases. All the more will a promise cease to bind if what was promised becomes unlawful and wrong, or useless, or impossible. It is obvious that release by the promisee, and other causes, which are sufficient to discharge contracts according to what was said above, will also suffice to do away with the obligation of a promise.

A GIFT is a unilateral contract by which property is gratuitously transferred to another. It differs from a promise in that it takes effect at once, while a promise regards the future, and from such contracts as sale and exchange in that it is gratuitous. A gift iter vivos is distinguished from a gift mortis causa in that the latter is made in contemplation of death and becomes irrevocable only if death follows. If death does not ensue, a gift mortis causa is thereupon revoked. A gift inter vivos was revocable by Roman law on account of ingratitude and for certain other reasons; by English law such a gift is irrevocable (cf. Can. 1536).

By the law of nature any property may be transferred to another by gift provided that the donor is capable of making a valid gift, and it is accepted by the donee. Positive law requires other conditions to be fulfilled in order that a gift may be recognized and enforced in the civil courts. Thus English law requires a gift of chattels to be completed by actual delivery unless it is made by deed. Certain kinds of property can only be given by deed. These and similar provisions do not invalidate a gift which is made without the formalities required by law, but if a gift is disputed, and the authority of the law is invoked, both parties must stand by the decision of the Court. A gift to pious causes is governed by ecclesiastical law, which requires for its validity nothing more than what is necessary by the law of nature (Can. 1513, 2348).

The Church prescribes that in gifts made to the Church or pious causes, the formalities required by civil law should be observed as far as possible,

A WILL is a legal declaration of a person’s intentions which is to take effect after his death. In English law a will is not necessarily a disposition of property; the appointment of a guardian for one’s children, or of an executor who will distribute the estate according to law, is a will if accompanied by the proper legal formalities. Ordinarily, indeed, a will is a disposition of property, but it frequently contains other provisions as well, as to the place of one’s burial and other matters.

A will is not, strictly speaking, a contract, for the consent of the beneficiaries under it is not required for its validity, but it partakes of the nature of a unilateral contract, and is usually treated as such by theologians.

Lawyers and theologians are by no means agreed as to the source whence a will derives its effect. Some hold that the power of testamentary disposition is derived from the law of nature, inasmuch as there is nothing to prevent a man from doing some act and at the same time suspending its effect until after his death. Others maintain that the will of a person cannot produce its effect when that person is already dead; no disposition of property can be made by a human will that has ceased to act as far as outward manifestation is concerned. Nor does a will produce its effect until the testator be dead. They conclude, then, that the power of testamentary disposition is derived from positive law. We may, perhaps, hold as certain that the law of nature gives owners of property the right to dispose of it in some way in view of death, but that it does not determine of itself the method of disposition by will. This precise method is a result of the determination of the natural by positive law.

To be valid in English law a will must be made according to the provisions of the Wills Act (1 Vict. c. 26, sec. 9), which enacted “ that no will shall be valid unless it shall be in writing and . . . signed at the foot or end thereof by the testator or by some other person in his presence, and by his direction, and such signature shall be made, or acknowledged, by the testator in the presence of two or more witnesses, present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.”

By section 11 of the same Act an exception to the rule that a will must be in writing is allowed in the case of any soldier, being in actual military service, or any mariner or seaman, being at sea. These may make a valid nuncupative will of their personal estate by word of mouth, even if they be minors.

We saw above that it is a disputed point among theologians whether an informal will is valid in the internal forum of conscience, though it be invalid in law. Probably it is valid if it express the intentions of the testator, until a party interested moves to have it set aside. All parties must stand by the decision of the court. A codicil, according to the terminology of modern English law, is a testamentary instrument altering or modifying a will. It requires for its validity the same formalities as does a will, and it may take effect without a will, if no will be forthcoming. A codicil to a particular will, or which refers to the provisions of the will, republishes the will and makes it speak as of the date of the codicil. But a testamentary instrument which is not described as a codicil to a will, and does not refer to a will, has not the effect of republishing the will.

A legacy is a gift in the form of a direction by testamentary instrument that the legal personal representative of the testator shall pay, transfer, or provide some money or thing to the recipient or legatee. The legatee derives his legacy from the executor, not immediately from the testator.

Anyone may bea legatee. A legacy bequeathed to a creditor of the testator is presumed to be in payment of the testator’s debt, but the courts look with disfavour on this doctrine, and are quick to discover reasons for setting it aside. A legacy to an infant may be paid to him if the testator so direct; otherwise the legacy must be retained until the infant attains the age of twenty-one, or paid to his testamentary guardian, or paid into court.

A legacy may be given on condition, either precedent or subsequent. Conditions against change of religion are valid in English law.

A legacy may fail from invalidity of the instrument conferring it, from uncertainty or vagueness of the terms of the bequest, or uncertainty of the person designated; from insolvency of the testator’s estate; from the testator having disposed of the object in his lifetime if the legacy be specific; or from his having paid the legacy in his lifetime; and from the non-fulfilment of a condition on which the legacy was given. ‘The legacy also lapses on the death of the legatee in the testator’s lifetime.

If a legatee has been paid, and the estate subsequently proves to be insufficient either from the discovery of further debts or the loss of assets, he may be compelled to refund his legacy in favour of creditors, and similarly a residuary legatee may be compelled to refund in favour of general legatees.

Legacies ordinarily become due on the death of the testator, but they are not payable for a year, that period being allowed executors in order to collect the assets and to pay the debts.

To secure the safety of trusts and bequests to Catholic objects, attention must be paid to various provisions of English law. The rule against perpetuities is designed to prevent property from being tied up permanently, and to obtain this end it requires that every use or trust must be so limited as necessarily to vest within a life or lives in being and a further period of twenty-one years. A tolerably large class of objects technically called ‘ charitable’ has, however, been exempted from this rule. Among these objects are the promotion of any form of lawful religion, the relief of the aged and poor, the maintenance of the sick, the establishment of free schools, and others of a similar kind. Such trusts and bequests as English law considers to be “ charitable ” are therefore upheld, though they may infringe the rule against perpetuities. According to the English penal laws, bequests for prayers and Masses for the dead were void as being bequests for ‘‘ superstitious uses,” and trusts and bequests for the benefit of religious communities of men ‘‘ bound by monastic or religious vows ”’ were also void, but these relics of penal times have now been abolished. ‘The Irish courts hold bequests for Masses to be for “ pious uses ” and not void, but subject to the rule against perpetuities as not being “‘ charitable ” in the technical sense. Trusts and bequests of land or of money to be laid out on the purchase of land are also subject to the Mortmain Acts.

These legal provisions do not bind the conscience with regard to legacies left to Catholic pious causes, nor is a Catholic justified in invoking them to make a pious legacy void for his own gain, but they should be known so that property left for Catholic purposes may be expended in accordance with the will and intention of the testator or donor (Can. 2348).

Wills and bequests for pious purposes among Catholics are governed by canon law, which requires nothing more than certain proof of the intention of the testator in order to make a testamentary disposition of property valid. It follows from this that bequests to pious causes contained in an informal will are valid, if there is morally certain evidence that it was the intention of the testator to make them. This doctrine has been frequently confirmed by answers of the Roman Congregations to questions proposed to them (Can. 1560, SEC. 43 1513, SEC. 2).

Those who have not yet attained the use of reason and persons of unsound mind are incapable of making a will by the law of nature. Religious who are solemnly professed are incapable of making a valid will by the law of the Church. Minors under the age of twenty-one cannot make a valid will, according to English law.

A will that has been made under duress and undue influence will be set aside if appeal be made to English courts. Women married after December 31, 1882, can by will or otherwise dispose of their separate property whether real or personal, and women married before that date can by the Married Women’s Property Act, 1882, dispose in the same manner of all property which accrues to them after that date.

We must treat first of contracts generally, then of contracts specifically, after first noting these things from the Code of Canon Law: those things which civil law establishes in the territory concerning contracts, both in general and in species, whether named or unnamed, and concerning payments, are to be observed by canon law in ecclesiastical matter with the same effects, unless they are contrary to divine law or something else is provided by canon law (can. 1529).

We shall treat: 1° of the notion and division of contract; 2° of the subject; 3° of the object and cause; 4° of the intrinsic form, or of consent; 5° of the extrinsic form; 6° of the effects of a contract.

I. Notion. A contract is the consent of two or more persons to some agreement, by which each party or one party binds himself to it. It differs from a mere convention, which is the consent of two or more persons to some agreement, without any one of them binding himself.

II. Division. Contracts are chiefly distinguished:

1. Into named and unnamed, according as it enjoys a proper name in law, or lacks one. Unnamed contracts are: Do ut des, I give that you may give; Do ut facias, I give that you may do; Facio ut des, I do that you may give; Facio ut facias, I do that you may do.

2. Into unilateral and bilateral, according as only one party or each party undertakes an obligation.

3. Into gratuitous, onerous, and mixed. A contract is gratuitous when one party furnishes an advantage to the other gratuitously. It is onerous when each party binds himself to an equivalent or nearly equivalent burden. It is mixed when one party binds himself to a burden which is compensated by the other party only in part, as if something is given under a relatively light burden.

Corollary. The division of contracts into unilateral and bilateral almost, but not wholly, coincides with the division of contracts into gratuitous and onerous. The former division regards only the obligation of one party or both parties; the latter also regards the mutual compensation of the burden undertaken. Hence, for example, a donation without an added burden is a gratuitous and unilateral contract; lease-hire is an onerous and bilateral contract; commodatum is a gratuitous and bilateral contract.

4. Into consensual and real, according as in its species it is perfected by consent alone, as buying-selling, or in its species is not perfected without delivery of the thing, as a mutuum.

5. Into express or explicit, and tacit or implicit, according as consent is manifested by word or by writing, or is gathered from some fact, for example from the undertaking of some office. A tacit contract is rather often called a quasi-contract by theologians.¹

6. Into solemn and non-solemn, according as for its validity some certain form prescribed by law is required or not required.

7. Into vested and naked, according as it admits or does not admit an action in court.

¹ By jurists a quasi-contract is called a licit act of a human being which does not include mutual consent, but to which law attaches the rights and obligations of a contract, as if someone without a mandate conducts the affairs of another who is absent.

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.

I. The remote object must be:

1. Placed in human commerce; but what things are placed outside commerce by natural law, see n. 766; what things by ecclesiastical law, n. 625; what things by civil law, consult the Code of one's country.

2. Determinate, at least with respect to species; with respect to quantity let it at least be determinable. The reason is that otherwise the contract would be illusory, as if someone should say that he sells some plant.

3. Proper to one of the contracting parties, at least if there is question of a thing determined in the individual, and it is disposed of absolutely. For nothing prevents someone from selling to another a thing determined only with respect to species, for example wheat, which he himself must still procure for himself. Nor does the condition proceed if someone contracts in the name of another, for example as mandatary.

4. Estimable by price, at least insofar as something is sold or quasi-sold to another.

Corollary. A thing already owed to the other contracting party cannot be sold or quasi-sold to him, if it is owed to him from justice, because then no right is conferred which the other does not already enjoy. Otherwise, if it is owed to the other contracting party from another virtue, because then a strict right is conceded to him who lacked it (St. Alphonsus, III, 713; IV, 216).

II. The proximate object must be:

1. Possible, at least physically. Someone can indeed oblige himself to an act morally impossible, but he is presumed not to have done this. If the thing is partly possible, the contract subsists for the possible part, except in the case in which the thing is indivisible, either by its own nature or from the intention of the contracting parties.

2. Honest, because no one can oblige himself to something dishonest. But this requisite must be discussed more fully, and it must be investigated more exactly to what extent a contract concerning a prohibited object has force, for example concerning servile work to be done illicitly on a feast day, concerning fornicatory or adulterous intercourse, and so forth. Now then, with natural law considered, this must be said:

a) If the prohibited work has not yet been performed, the contract is weak at least to this extent, that each party can and must revoke consent; but once consent has been revoked by at least one party, the contract vanishes, so that, even if one party performs the dishonest work, nevertheless the other is not bound to pay the price.

b) If the prohibited work has been performed, and consent has not previously been revoked, the obligation of paying the price is commonly admitted if there is question of a work prohibited only by positive law; for this payment, in our opinion, the same reason can be alleged as for a work intrinsically evil. It is added, however, that in the case no difficulty can be taken from the fact that the intrinsically evil work is not estimable by price.

It is controverted if there is question of a work intrinsically evil. Some deny the obligation of paying the price, because an intrinsically evil work is not saleable, as not estimable by price, neither insofar as it is a sin, nor insofar as it is laborious, dangerous, or pleasurable, because these are inseparable from sin. It is added that a contract, plainly null from the beginning, cannot become valid through the completion of the work. Others admit the contrary, because it is not evident that the act of the one promising the price and the act of the one accepting the promise, as persisting once the work has been fulfilled, do not obtain their effect. Nor, in this opinion, is the contract plainly null from the beginning, because the effect is produced by force of the acts placed and not retracted in due time. St. Thomas seems to adhere to this opinion (II-II, q. 32, a. 7; q. 62, a. 5, ad 2; q. 87, a. 2, ad 2). If, however, civil law makes contracts of this kind void or renders them rescindable, it certainly can be urged by the one promising the price.

St. Alphonsus deservedly regards each opinion as sufficiently founded. But while doubt stands, one can stand in favor of the possessor; in other words, one who has not yet paid the price is not bound to it; one who has received the price can retain it (St. Alphonsus, III, 172). This, however, does not prevent one who paid the price, if he can, from recovering it by judicial action, because he was probably not bound to pay. But he cannot use occult compensation, because the debt is not certain.

The Sacred Penitentiary¹ responded: "A penitent woman is not to be compelled but exhorted, according to the judgment of a prudent confessor, to expend the price of prostitution for pious uses."

Question. Whether a woman, to whom a man has given something to elicit intercourse, can retain the thing given if intercourse has been denied.

Response. Affirmatively, if the man added no condition, because the donation is judged wholly liberal, made for alluring the woman. Nevertheless acceptance will scarcely be able to be excused from scandal (St. Alphonsus, III, 712, 734, 736).

¹ April 22, 1822.

Consent must be internal, fully deliberated, external and intimated to the other party, and indeed by the contracting party or in his name, and finally simultaneous. It is said:

I. Internal. If it is not internal, consent or volition is lacking in reality. Therefore a fictitious contract is invalid, that is, one entered into externally but without the mind of contracting (St. Alphonsus, III, 709; VI, 832). One who by contracting fictitiously has inflicted damage on the other party is bound to repair it, even, if it cannot otherwise be repaired, by now truly contracting (St. Alphonsus, III, 709; VI, 832, 833).

Corollary I. One who wills to contract as others are accustomed to do truly contracts, even if he merely does not know that an obligation arises, because he implicitly wills the obligation. The same seems to have to be said of him who wills to contract as others are accustomed to do, although he judges that an obligation does not arise, because by willing the contract he also seems implicitly to will the obligation, which he does not explicitly exclude.

Corollary II. One who wills to contract, but has the mind of not obliging himself, seems not to contract, because he excludes that without which a contract cannot exist; hence those two volitions destroy each other. Indeed even the other volition, as more particular, seems to prevail over the former (St. Alphonsus, III, 201).

Corollary III. One who wills to contract validly contracts, even if he has the mind of not fulfilling the obligation; for the said volitions, as regarding diverse and separable objects, do not exclude each other.

II. Fully deliberated; for only an act of this kind can beget obligation and the acquisition of a right.

III. External; namely insofar as it must be intimated to the other party.

IV. Intimated to the other party, as follows:

1. The consent of the one offering the contract must be intimated to the other party. For the offerer cannot be bound with respect to the other party unless he has offered to the other party that by which he binds himself, that is, his own consent. But consent is offered to the other party through intimation.

2. The consent of the one accepting the contract must be intimated to the other party, as will be explained:

a) If there is question of an onerous contract, the answer is affirmative. For the acceptor, equally as the offerer, cannot be bound with respect to the other party unless he himself has offered to the other party that by which he binds himself, that is, his own consent; but consent is offered through intimation.

b) If there is question of a gratuitous contract, the answer is negative, because in the case the acceptor, with respect to the other party, is not bound or burdened by any obligation, so that the reason set forth above does not hold in the case.

Corollary. The offerer and the acceptor of a contract, for example of buying-selling, per se can revoke consent - for example consent given by letters - by a telegraphic message, as long as the consent has not yet become known to the counterparty. I said per se; for law, custom, or the manifest will of the offerer can bring it about that the offerer can no longer revoke consent without injury after it has become known to the counterparty; for example, if someone offers and transmits to another a sum of money for buying a thing, he sufficiently indicates that he renounces the right of revoking consent.

V. Intimated to the other party by the contracting party or in his name; namely insofar as it must be intimated. The reason is that only the author of the consent can offer to the other party that by which he binds himself, that is, consent.

VI. Simultaneous with the other, because otherwise they do not truly come together into one. Nevertheless it suffices that one consents while the consent of the other endures.

The obstacles of consent are enumerated: ignorance, error, fraud, and fear. Ignorance is the mere absence of knowledge concerning some thing. Error is a false judgment concerning some thing or person. Fraud is the deliberate circumvention of another. Now those things which regard ignorance practically fall under those things which have force concerning error. Enough will be said about fraud where there will be discussion of error.

I. Division. Error is distinguished:

1. Into substantial and accidental. Substantial error is had: 1° when the nature of the contract intended by one party is different from the nature of the contract which the other party intends, as if you accept something as a gift, when the other party intends to lend it for use; 2° when the object of consent, at least morally speaking, is different from the object of the present contract, that is, the object upon which the expression of consent is borne, as if you intend to buy a gem, and the expression of consent is borne upon glass; 3° error concerning the person with whom one contracts can be substantial only then when, as in matrimony, the person constitutes the object of the contract.

Others, however, speak thus with respect to error concerning the person: error concerning the person can be substantial or accidental. In matrimony it is always substantial, because the person itself is the object about which the contract is made. In other contracts error is substantial if the person is intended per se and principally, as commonly happens in gratuitous contracts; for example, if you give alms to Peter, thinking him to be poor, when he is rich. Error is accidental if the person is something secondary, which most often has place in onerous contracts, for example if you buy something from Paul the heretic, thinking him to be Catholic; sometimes it also has place in gratuitous contracts, as if you give alms to Peter the poor man, thinking him to be Paul.

Outside the cases enumerated above, error is accidental.

2. Into error which gave cause to the contract, and such as did not give cause to it, according as the contract, with the error set aside, would not have been entered into, or nevertheless would have been entered into.

II. Influence upon the contract. Error concerning the nature of the contract, as is clear, makes the contract void. Hence now let us speak about error which concerns the object of the contract. Now then:

1. Substantial error makes the contract void. For it brings it about that consent is borne upon an object different from the object of the present contract, that is, from the object upon which the expression of consent is borne. Therefore consent is lacking with respect to the object of this contract (St. Alphonsus, III, 714; cf. can. 104).

2. Accidental error effects these things:

a) It makes the contract void if the contracting party attaches his consent to the accident in such a way that it falls back into a condition sine qua non (cf. can. 104). Otherwise it does not make the contract void, because it does not prevent consent from being borne upon the object of the present contract. But the case of nullification occurs especially in error concerning the person, and indeed, that we may apply what others according to the things said in n. 836 hold as substantial error, if the person is intended per se and principally, as commonly happens in gratuitous contracts; for example, if you give alms to Peter, thinking him to be poor, when he is rich. Otherwise it must be said if the person is something secondary, which most often has place in onerous contracts, for example if you buy something from Paul the heretic, thinking him to be Catholic; sometimes also in gratuitous contracts, as if you give alms to Peter the poor man, erroneously thinking him to be a religious (St. Alphonsus, III, 737).

b) It renders the contract rescindable if the error was induced by fraud, and indeed by the other contracting party, and gave cause to the contract. Otherwise it does not render the contract even rescindable.

The reason for the former is that a contract induced by the fraud of the other contracting party involves an injury inflicted by the other contracting party; and this injury must be repaired by him. It is repaired by the fact that the contract involving the injury is removed, in other words rescinded. Therefore it must be rescinded, or at least rescission of it must be offered, by him who inflicted the injury; corresponding to this obligation is the right of rescinding in him who has suffered the injury. If the contract has already been given to execution, the injury is repaired by the fact that the deceived person is restored to his former state with respect to his things (St. Alphonsus, III, 715).

The latter involves three things, namely:

a) Accidental error does not render the contract rescindable if it was not induced by fraud, but, for example, inculpably or fortuitously, or by a non-free cause; because an injury, at least a formal one, to be repaired is lacking.

b) Accidental error does not render the contract rescindable if it was induced by the fraud of a third party. The reason is that injury to be repaired by the other contracting party, for example by Peter, is absent. But an injury inflicted by a third party, Paul, upon one contracting party, James, is not a reason why the other contracting party, Peter, can be deprived, by rescission of the contract, of the right acquired through the contract with James.

c) Accidental error does not render the contract rescindable if it did not give cause to the contract. For from the fact that, with the error excluded, the contract nevertheless would have been entered into, it follows that the contract, equally as other contracts entered into without error, was acceptable to the will; hence, equally as those other contracts, it must be held as firm and non-rescindable.

Nevertheless, observe that if the due equality between wage and price has been injured because of error, it must be repaired; and if fraud has been added, the deceiver is bound to repair also other damages, if perhaps they have followed from the fraud (St. Alphonsus, III, 714 and 715).

Note 1. With respect to ecclesiastical matter, observe these words of can. 104: "In contracts error can give place to a rescissory action according to the norm of law"; likewise these words of can. 1684, § 1: "If someone ... circumvented by fraud ... has entered into a contract which is not null by the law itself, he can, ... once the fraud has been proved, obtain ... the rescission of the contract by the action which is called rescissory."

Note 2. What civil law establishes concerning error, see in the law of one's country.

I. Notion. Fear is a trepidation of mind on account of a present or future danger.¹

¹ Thus Roman Law, L. 1, ff. Quod metus causa, IV, 2.

I. Notion. Lesion consists in this, that the equality which is required in onerous contracts is not preserved.

II. Influence upon the contract. Lesion, with natural law considered, per se neither makes the contract void nor renders it rescindable, but brings with it the obligation of restoring equality. I said per se, because at the same time there can occur error or fraud, which renders the contract invalid or rescindable.

With respect to ecclesiastical matter, observe can. 1684, § 2: "One who has suffered grave lesion beyond half from error in a contract can, within two years, obtain rescission of the contract by the action which is called rescissory."

What civil law establishes concerning lesion, see in the civil Code.

I. Notion. By the extrinsic form of a contract are understood the solemnities, according to law, to be employed in entering at least some contracts.

II. Division. 1. The extrinsic form of a contract is divided:

1. With Canon Law considered, into essential and accidental, according as it is required for validity or only for liceity; thus the presence of witnesses and of the pastor for matrimony is essential; but that matrimony must be entered into publicly pertains to the accidental form.

2. With civil law considered, some solemnities are sometimes required for merely proving the contract; others are in some way necessary for validity, as we shall explain more fully in the scholion.

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.

I. A condition concerning the past¹ or concerning the present² brings it about that the contract immediately subsists or does not subsist, according as the condition has been fulfilled or not fulfilled. But execution of the contract is suspended until it is known whether the condition has been fulfilled or not.

¹ For example: if your father has died, I give this thing to you.

² For example: if you are a minor, I confer this or that on you.

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

Letting-hiring is a contract by which someone grants to another the use or fruits of a thing, or the work of a person, for a price or wage. He who grants the use or fruit of a thing, or the work of a person, is called the locator; he who pays the price or wage is called the lessee or hirer. There is added the letting of a work, or contract of completing a work, for example of building a house. We shall speak of each.

I. Notion. Insurance is a contract by which someone, the insurer, for a certain price obliges himself to compensate someone, the insured, for an uncertain damage or ceasing profit. It is said uncertain, that is, for each party.

I. Notion. Suretyship is a contract by which someone, the surety, binds himself to fulfilling another's obligation if the principal debtor does not satisfy him.

For the fulfillment of the law of charity, external acts of love are not enough; there must also be internal love or affection.

(a) With regard to charity towards God, there can be no question of external charity through acts of beneficence, as is clear; but one is obliged to signify one’s love of God, if silence would cause scandal or convey an expression of hatred of God. Mere lip-service, however, will not do, for God must be loved and served from the heart (Matt., xxii. 37; Eph., vi, 6; II Thess. iii., 5; etc.).

(b) With regard to charity towards the neighbor, external charity is commanded (see 1210 sqq. and 1551). But there must also be internal charity, for we are bidden to love our neighbor as we love ourselves (Matt, xxii. 39), as Christ loved us (John, xv. 12), from the heart (I Pet., i. 22). If a man distributed his goods to feed the poor, not out of love, but out of vanity or other sinful motives, his act would not be an exercise of charity. Innocent XI condemned the proposition that we may satisfy through external acts alone the precept of loving our neighbor (Denzinger, n. 1161).

Forms of Contract.—The chief forms of contract are the following:

(a) gratuitous contracts, which are those that confer advantage on only one of the contractants, or those in which no payment or compensation for his acts or goods is made to one party by the other party. They include unilateral contracts, which produce obligation on one side only (e.g., a promise, gift, testament), and bilateral contracts, which produce obligation on both sides. The bilateral contracts are also known as bailments, or understandings whereby a thing or business is transferred from one person to another in trust, on condition that a return will be made to the owner, They include the following contracts: loans, in which return must be made of the identical things borrowed (commodatum), or of a thing similar in kind (mutuum); deposit, in which a thing must be returned after safekeeping (depositum); an agency, in which one conducts the business of another with the obligation of making returns, either from express contract (mandatum) or from imputed agreement (negotiorum gestio). In commodatum and mutuum the advantage is had by the bailee, in the other three by the bailor;

(b) onerous contracts of certain event, which are those that confer an advantage on both parties, and in which the thing agreed on is certain and definite. They include contracts in which one party transfers ownership to the other (e.g., buying and selling, barter, loan at interest, contracts for annuities, stocks and bonds) or useful dominion (e.g., lease of property, contractor’s agreement, hire of labor), and contracts in which both parties transfer rights to a moral person of which they are the members (partnership);

(c) onerous contracts of uncertain event, which are those that confer advantage on both parties, but in which the thing agreed on is contingent and uncertain. Examples are insurance, wager, gaming contracts, lottery, and stock market speculation;

(d) subsidiary contracts, which are those that are made in order to give security to principal contracts to which they are annexed or for whose sake they are made. Such are guaranty and surety, pledge and pawn, and mortgage.

Self-defense must be moderate, for injury or the death of a human being is a thing that should be avoided when possible. (a) Thus, the person attacked must not reply with force at all, if this is possible. He should escape, or call a policeman, or throw the weapon out of the window, etc., if these means will suffice. Some authors excuse from flight those who would suffer disgrace if they ran away from danger, such as those who are pugilists or professional fighting men. (b) The person attacked should use only such force as is necessary, if force must be employed. Thus, if the aggressor can be made helpless by the use of gas, permanent bodily harm should not be done him; if he can be subdued with the fists, knife or pistol wounds should not be resorted to; if wounds will suffice to hold him at bay (e.g., by blackjacking), killing should not be resorted to. In the heat of a fight, however, the person assailed sometimes unintentionally goes beyond what moderation requires.

Contracts.—A contract may be deined as a mutual agreement concerning the transfer of a right.

1. A contract is a mutual agreement, i.e., there must be consent of at least two parties to the same object. An offer made but not accepted is not a contract, for only one party consents.

2. The contractants transfer a right which produces in most instances under justice a corresponding obligation of doing or omitting something. Promises, pledges, pacts, etc., while they impose obligations based on truthfulness, loyalty, etc., are not contracts. See 1888 (a).

3. The obligation in justice may be on both sides (bilateral) or only on one side (unilateral), but consent must be on both sides.

The elements of a contract are made up of essentials and accidentals. (a) The essentials include the subject-matter, the parties contractant, their agreement, and the external form that manifests the agreement. (b) The accidentals include bonds, oaths, conditions and modes.

The subject-matter of a contract—that is, the thing or action or forbearance with which the agreement is concerned—must have the following qualities:

(a) it must be something possible, for one may not undertake what one cannot perform. Thus, one cannot bind oneself by an accessory contract (such as suretyship), if the principal contract itself is ipso facto invalid. But if the impossibility is only moral (i.e., great difficulty), one who knowingly undertakes the arduous is bound to fulfill his promise; if it is only partial, one is held to the part that is possible; if it is culpable, one is bound to repair damage caused the other party through non-fulfillment;

(b) it must be something disposable, for one may not transfer that over which one has no right of control or transfer. Thus, one may not contract to sell public property that is extra commercium, or property of which one has only the possession, or goods over which others have a claim (e.g., a debtor may not bestow gifts to the detriment of creditors’ rights), or goods not transferable for pay (e.g., payment for a favorable decision by a judge, or property owed to a third party) or for money (e.g., academic degrees, public offices, Sacraments, indulgences);

(c) it must be something existent and determinable, for no one wishes to contract for a right that is valueless and illusory. Thus, one may not sell shares of a stock company that has no assets, or an indefinite house or lot or chattel;

(d) it must be something good and lawful, for one may not bind oneself to iniquity. If it is sinful (e.g., a contract to sell a house in order to spite a third party), the agreement is per se valid. But if the substance is evil (e.g., a contract for fornication made with a prostitute), the agreement is null before the performance of the promised sin; but it seems to many that after performance of the sin the promisor is obliged to pay the money promised, unless the law makes the contract void (see 1886 c). If the law merely denies protection to a sinful engagement, or forbids it under penalty, it would seem that after performance of the sin one may follow, as far as strict justice is concerned, the rule that right is with the possessor. In the United States immoral and illegal contracts and those that are opposed to public policy are generally regarded as null, but in some cases the law declares immoral conditions de futuro non-existent and considers the agreement to which they are added as valid (e.g., wills and gifts inter vivos in some codes).

Sinful Contracts.—There is no form of contract that may not be made sinful as to its substance on account of the wicked offer or consideration (e.g., sale may deal with immoral objects, labor may be given to criminal projects), but there are certain forms of contract that are particularly open to abuse and hence are frequently associated with evil circumstances or results. Some contracts are often illicit according to natural law.

(a) Thus, a gift is sinful, on the part of the donor, when it is made by an employer for the purpose of seducing a servant, and on the part of the servant, when it is accepted for the purpose of encouraging the unlawful attentions of the employer; but if the gift is unconditional, there is no obligation in justice to return it.

(b) Borrowing is sinful, when the lender is in greater need, or when one becomes unduly obligated to the lender; lending is sinful when the lender cannot afford to part with the thing loaned, or when the borrower is encouraged in thriftlessness, or when he will make evil use of the thing borrowed, etc.

(c) Wagers are frequently sinful, since many of them are incitements to sin (e.g., a bet that another is afraid to get drunk), or results of sinful motives (e.g., bets made in order to deceive, or to satisfy avarice, or to live without work), or causes of great evils (e.g., destitution of families, frauds, scandal, and corruption).

(d) Gaming is sinful when the form of the sport is objectionable (e.g., the ancient gladiatorial fights in which the combatants killed each other), or when the motives or circumstances are wrong (e.g., to play as a professional gambler so as to avoid work, to play cards all day Sunday, to play for higher stakes than one can afford, to spend time in “gambling hells”).

(e) Lottery is sinful when the object is bad (e.g., the raffle of an important office with the risk that incompetent persons may be chosen), or when the circumstances are bad (e.g., if persons are led into superstition or idleness and prodigality).

(f) Speculation is sinful in many instances, since it often brings on a gambling fever that makes the speculator useless to himself and his dependents, and causes poverty and crime.

(g) Pawning of property is often unjustifiable, since it makes persons deprive themselves of necessary property in order to indulge in some useless or extravagant whim with borrowed money.

Illegal Contracts.—For reasons of public policy the positive law puts its disapproval on many of the above-mentioned contracts, at least in certain instances.

(a) Thus, sometimes the law makes a contract unenforceable in court, though the natural obligation is not affected. Hence, if a wager is only denied a hearing before a judge, the winner may keep his gains, and the loser should pay.

(b) If the law merely declares that a contract is illegal, the effect seems to be that the contract retains its natural validity unless the party who has suffered by it wishes to disavow it. As to the sinfulness of such a contract, that depends on whether or not the law is penal or preceptive in intent. Thus, many regard laws that make betting illegal as preceptive under venial sin, while others regard them as punitive only. Other examples of illegal contracts are: gifts made to a judge in connection with a trial; lottery, in Great Britain and the United States; certain games of chance, in some States; and in Canon Law, as regards the clergy, alcatory games for money, speculation and trading (Canons 138, 142).

(c) If the law makes a contract voidable, the effect is that the contract possesses its natural force until adverse decision is given by court. Hence, if a wager is voidable in law, the winner may keep his gains until obliged by a judge to give them up, but the loser is not bound to pay, unless he confirms the wager.

(d) If the law makes the contract ipso facto void, the agreement loses its natural force (see 558-560). In most of our States, wagering contracts are illegal and void whether by statute or by judicial decision. In many of these States the statute permits the recovery of the money from the winner or the stakeholder. Gifts offered as bribes are invalid, and those who give or take such gifts are guilty of serious sin and of a criminal offense. In some of our States, certain gaming contracts are also null.

Qualities Necessary in the Parties Contractant.—The parties contractant must have the following qualities:

(a) from natural law it is necessary that they have the use of reason sufficient to understand what they are doing. Incompetent are babies and the insane, and also those who are totally drunk or otherwise temporarily deranged. Less competent are the half-witted and those who need a guardian in important matters;

(b) from positive law it is necessary that they be not legally excluded. In Canon Law administrators of church property and solemnly professed religious are unable to make certain contracts (Canons 1527, 536). In civil law there are restrictions on the contractual powers of minors, wives, aliens, guardians and corporations. Persons not yet conceived are not capable in civil law of receiving a donation, and there are many prohibitions against the tender or acceptance of gifts by those who can reasonably be suspected of exercising undue influence or of being subject to undue influence.

Legal Privileges of Minors.—The law grants certain benefits to minors and the like; for example, in some cases they are not bound by a non-executed agreement, while the other party is bound, or in an executed contract they may recover property without restoring or offering to restore the consideration, if they have nothing with which to replace it.

(a) Minors and other persons who are legally incompetent to contract, may avail themselves of the benefits of the law with a good conscience, if they are in good faith; for it is just that the law should protect those who are unable to protect themselves, and those who make contracts with such persons should know that they (the competent parties) act at their own risk.

(b) Minors and other persons legally incompetent may not avail themselves of the benefit of the law if they have acted in bad faith (e.g., if a minor by deceit induced the other party to sell to him).

Qualities Necessary for Valid Consent.—The agreement or consent of the contracting parties must have the following qualities:

(a) it must be internal, that is, one must accept in will and not merely in words the proposal or consideration offered by the other party. If one consents only to the form of the contract, the contract is null, and the same is probably true if one does not accept internally the obligations of the contract; if one consents to the obligations, but does not intend to fulfill them, the contract is valid, but unlawful. One who contracts invalidly sins, and is bound in the external forum to keep the contract seriously made, and in the internal forum to repair the damage to the other party by giving true consent or making restitution. One who contracts unlawfully also sins, and is bound to the engagement;

(b) it must be external, that is, one must manifest in some sensible way one’s agreement to the proposition contained in an offered contract. Silence gives consent only when the contract is favorable to the party who is silent, or when that party should and easily could manifest his lack of consent, if the proposal did not please him. In the case of contracts between parties who are not in each other’s presence, the intimation to the offerer of the offeree’s acceptance is not necessary for validity, if the contract is gratuitous; but the contrary seems to be true, at least per se, if the contract is onerous. We shall speak later (1885) on the legal formalities required in contracts;

(c) it must be mutual, that is, there must be a meeting of minds in the same sense, or agreement of both parties to the same thing. Mutuality requires that consent be contemporaneous, that is, that the acceptance of one be given while the offer of the other still holds good. But it does not require that the parties be in each other’s presence, or that they contract through direct personal communication, or (at least according to natural law) that the knowledge of the accomplishment of mutual agreement be known to the offerer. The law in the United States generally is that an offer may be withdrawn immediately or after a reasonable time, unless it was made on time for a consideration; and that a contract between the absent begins only on receipt by the offerer of the acceptance of the offeree, if the former stipulated for this, or if the offerer uses one means of communication as his agency and the offeree another. In other cases it begins the moment that acceptance is entrusted to the agent of the offerer;

(d) it must be free, that is, it must have the advertence and voluntariness necessary for a human act. If the contract is of grave import, there should be the same kind of deliberation as is necessary for commission of a mortal sin (see 173 sqq.); if it is of lesser import, the deliberation should correspond with the seriousness of the case. But some authors think there should be perfect deliberation in every contract, since the contractants are assuming obligations of justice.

Defects that Invalidate Consent.—The defects that vitiate consent by taking away knowledge or choice render contracts either void or voidable (see 40-55). These impediments are the following:

(a) error, which is a judgment of fact or of law in reference to the contract, not in harmony with the truth, but not maliciously caused by other persons. If error is substantial (that is, about the nature of the contract or the nature of the subject-matter of the contract), the agreement is naturally void; if error is only accidental (that is, about features of the contract, subject-matter or co-contractant, that are only incidentally intended), an onerous agreement is naturally valid, but positive law in the interest of freedom will often grant the privilege of rescindment (see Canon 1684, n. 2). But if error cannot be proved, courts will stand for the validity of a contract;

(b) fraud, which is error or mistake about a contract caused in one of the parties by the dishonest representations of the other party or of a third person (e.g., when an insurance agent deceives about the benefits, or a policy-taker deceives about his age or health). Fraud exists, then, when there is intention, at least indirect, to mislead, and statements, acts or omissions calculated to mislead; but the usual boasts of vendors and advertisers about the wonderful excellence of their wares are not fraudulent, since the public understands that such talk must be taken cum grano salis. The effects of fraud on the value of contracts are the same as those produced by error; but it should be noted that the person guilty of the fraud is bound to make good the losses of the injured party, even though the contract be valid and not rescindable, or though the guilty person be not a party to the contract;

(c) fear, which is a disturbance of mind caused by the belief that some danger is impending on oneself or others (see 41 sqq.). It makes a contract invalid in natural law, when it takes away all consent (e.g., when it overpowers the reason, or makes one dissent internally from what is agreed to externally), and probably also when it takes away perfect freedom in a gratuitous contract, or makes one enter into a contract for immunity from an unjust vexation; it renders an act or engagement invalid according to positive law in many special cases (e.g., the Canons declare null elections, resignations, marriages, vows, etc., which are made under the influence of fear). Contracts are considered naturally voidable if one of the parties unjustly extorts the consent of the other by grave fear, or if a third party intimidates a person into bestowing something through gratuitous contract; and the positive law generally treats agreements entered into under grave fear as rescindible (see Canon 103, n. 2). Fear unjustly caused, even though it does not make a contract void or voidable, is at times a reason for the duty of restitution, as when a third party by his unjust threats forces an innocent person to make expensive contracts as a measure of protection, and probably also when a third party directly constrains one to make an onerous contract with a person who knows nothing about the coercion. Fear, no matter how great, does not in any way weaken a contract, if there is consent and the fear is induced by a natural cause (e.g., a storm), or by a human cause acting justly (e.g., an injured man threatening a lawsuit);

(d) violence or coercion, which is like to fear, the latter being moral force and the former physical force (see 52). According to natural law, violence invalidates a contract, unless we suppose that it is only concomitant, as when Sempronius uses coercion to make Balbus sign a contract which Balbus is really willing to sign. Positive law does not recognize, or will set aside, agreements made under overpowering constraint (see Canon 103, n. 1).

Form of Contract.—The form of a contract is the external manner in which, according to the positive law, the internal consent of the parties must be expressed and manifested.

(a) Thus, Canon Law in certain contracts (e.g., engagement of marriage, marriage, alienation of church property) requires specified solemnities under pain of nullity of act.

(b) Civil law in the United States designates various formalities to be used in transfers of property (e.g., that a deed for real estate be written, signed, sealed and attested; that a gift be made by delivery or equivalent act; that certain contracts be in writing; that no contract be of worth unless it be for a consideration, or else be on paper with seal attached). The law has the right to annul informal contracts ipso facto, but whether this is the intention in modern codes is a matter of dispute. The practical rule to be followed, then, is that the possessor is to be favored, unless there has been a court decision against his claim. It should be noted, too, that some legal conditions, such as valuable consideration in simple contracts, are required for enforceability, not for validity, and hence a good contract wanting some such condition, though indefensible before the courts, is obligatory in conscience.

The Accidentals of a Contract.—(a) Bond is the agreement by the obligor of a contract to pay a certain forfeit to the obligee, if the former does not perform his contract or does not perform it before a certain date. This agreement obliges in conscience, if the promise was seriously made, if the penalty is not excessive, and if the breach of agreement is culpable.

(b) Oaths added to contracts have moral effects on the contracts themselves and also on acts contrary to them. As regards the contract, an oath adds the obligation of religion to that of justice, if the contract is valid and irrescindable; and the common opinion is that it strengthens a contract extrinsically, that is, it induces an obligation of religion to keep the promise, if the oath is invalid or rescindable by positive law only and in favor of a private privilege; but an oath in no way strengthens a contract that is naturally invalid or rescindable positively on account of the public good. As regards acts that are contrary to an invalid or rescindable contract that was confirmed by a valid oath, they are sinful, as being irreligious, but not invalid nor unjust (see 2260).

(c) Conditions are accidents or circumstances so added to a contract that the consent or dissent is made dependent upon their existence or fulfillment. An immoral condition, if unfulfilled, takes from the contract all obligation, exception being made for separable parts that are not affected by the immoral clause; but if it has been fulfilled, it seems that there is a moral obligation to pay the consideration promised (see 1878 d).

(d) Modes are accidents or circumstances so added to a contract as to qualify the rights or duties of the contractants, or the purpose, matter or time of the contract, but not so as to make the consent dependent on the fulfillment of the thing designated. Thus, if Titus leaves money to Balbus, chiefly because Balbus is his nephew, and secondarily because he imposes on Balbus the obligation of using the money for his education, Balbus in accepting the money accepts also the obligation, but the gift does not lapse if the obligation is not complied with. If a donor adds an immoral mode to his gift (e.g., that the donee use in immoral ways the money left him), this purpose is regarded as non-existent and the gift stands in spite of it. If an agent violates a mode (e.g., he pays $1001 when he was directed to pay $1000) but not a condition (e.g., that he purchase land and not a house), the contract stands.

The Moral Obligation of Entering into a Contract.—(a) There is a duty of justice when one is under public or private engagement to make a contract. Examples are a merchant who opens a store for public patronage, or an auctioneer who holds a sale before invited patrons, or an owner who makes with another person a contract to sell, or a man and woman who make solemn espousals.

(b) There is a duty of charity when a neighbor is in such need that he deserves to be helped, for example, by a loan or by assistance to make a loan: “From him that would borrow of thee turn not away” (Matt., v. 42); “A good man is surety for his neighbor” (Ecclus., xxix. 18).

Every valid contract obliges to faithful performance as a duty of conscience, even though it be unenforceable and without civil obligation. We shall discuss the properties of this obligation.

(a) Quality of the Obligation.—Onerous contracts oblige in virtue of commutative justice and under pain of restitution; gratuitous contracts oblige according to some from justice, according to others from fidelity, according to others from fidelity or justice as the obligor intends (see 1692, 1753). In practice one may follow the rule that a liberal promise or wager or other gratuitous contract obliges only from fidelity with no duty of restitution, unless it be certain that the promisor intended to bind himself in justice. One is responsible, however, for damages resultant on breach of promise. The obligation seems to be one of legal justice only when the thing promised is something on which a pecuniary value cannot be set and consists in compliance with law (e.g., in suretyship or bail for keeping the peace or appearing in court).

(b) Quantity of Obligation.—In onerous contracts the degree of obligation depends on the importance of the subject matter, and hence it is a mortal sin to violate a contract in which a grave right is concerned; in gratuitous contracts the degree of obligation depends entirely, according to some, on the will of the person who liberally binds himself, but others hold that it depends on the importance of the subject-matter.

(c) Subjects of Obligation.—The parties to the contracts and those who take their place (e.g., heirs, executors) or who are responsible for the contract (e.g., those who commanded the agreement) are morally bound to fulfill the agreement, while others are bound not to interfere with the fulfillment.

(d) Objects of Obligation.—Directly, there is the duty of observing what is contained explicitly or implicitly in the agreement, and indirectly of making good any losses caused by breach of contract. A rescindable contract obliges until it is lawfully disaffirmed by the party who has the right to break it; a quasi-contract imposes on the party who has benefited by the services or expenses of another a moral obligation of making compensation. If a contract transfers ownership (e.g., contract of sale passing title to buyer, mutuum), the transferee must bear the risks and expenses of the thing transferred; but if it does not transfer ownership (e.g., contract to sell, commodatum) or has not yet done so (e.g., contract of sale in which title will pass later, on delivery or payment), the transferer has the risk and expense (see 1796).

Cessation of Obligation.—The obligation of a contract ceases in various ways: (a) by action of the contractants, as when a promisee renounces his right, or each of the parties to a promise has made a gratuitous promise in favor of the other and one refuses to keep his word; (b) by action of law, for example, by prescription, by annulment; (c) by impossibility, as when a thing freely promised has become unlawful or useless, or when the donee of a gift mortis causae dies before the donor.

Comparison of Theft and Robbery.—(a) They differ in species, for theft contains injustice to an owner in his property, but robbery, which is an unjust and violent taking of what belongs to another, contains injustice both to property and to person. The unwillingness of the owner in the case of theft is due to his ignorance of his loss; in the case of robbery it is due to intimidation or force. (b) They differ in gravity, robbery being according to its nature the more serious kind of stealing; for the robber does a twofold injury, and the owner’s unwillingness to be robbed is greater.

Principles Obligatory in All Forms of Contract.—The principles of equality and honesty that are morally obligatory in sales and loans at interest are also obligatory in other forms of contract. The following are examples of equality.

(a) Gratuitous Contracts.—Obviously these contracts do not require equality in respect to recompense, since their nature is that no recompense is given for what is received. But in other ways equality must be observed. Thus, there must be mutual consent, offer on one side and acceptance on the other; there must be mutual respect, for each must honor the gratuitous promises made to the other; there must be a return of the same thing in quality and quantity as was borrowed, unless this would mean (as in mutuum) a loss to the borrower, etc. Moreover, the fact that all the advantage is received by one party is balanced by the fact that this party must bear the ordinary expenses and is held to special care himself, but cannot exact special care in the other party. Thus, a borrower has all the advantage from a loan, and he is obliged to use extreme care in using the lender’s property, while a depositor has all the advantage from the contract of deposit and cannot demand more than ordinary diligence of the depositary in guarding the goods left with him.

(b) Aleatory Contracts.—Aleatory contracts, or contracts of chance, are concerned with some uncertain event whose outcome depends upon luck or skill or a combination of both. The chief forms are betting, lottery and gaming (all are considered as gambling), to which must be added insurance and market speculations. All of these are indifferent in themselves and obtain their morality from circumstances. However, gambling, besides conforming to the requirements of contracts in general, must observe some special conditions to guarantee its lawfulness:

1. The outcome should be objectively uncertain and not a “sure thing” to be truly a contract of chance. While the contractants may be subjectively certain of winning, neither may so manipulate the matter as to exclude the other’s chance of winning. Should one insist upon betting against another’s assurance of a certain outcome, he is making a gift, hardly a bet.

2. Each must stake what belongs to himself and is not needed for satisfying other obligations, e.g., supporting one’s family, paying creditors, etc. Failure to observe this condition leads to many sins of theft or negligence. Should a person gamble with money belonging to another, per se he has a right to the winnings under the title of industrial fruits. However, if it would be impossible for him to restore in the event of a loss, the wager is void and the winnings must be restored to the other player, since the amount bet could not be lawfully won by the other contestant.

3. A reasonable proportion should be observed between what is bet and the probable winnings, and all betting should offer a fair chance of winning. Equality is not necessary, but odds and handicaps should be offered by the favored side. However, the odds may be waived by other bettors.

4. Honesty must prevail to exclude fixing the outcome or an unlawful style of play. The conventions of each bet or game establish the norms of cheating. Thus, hidden cards, marked cards, false dice void a bet. But running a horse solely to “tighten him” or “round him into shape” without full effort to win is expected in horse racing. Winnings through cheating must be refunded.

5. The loser must pay. Since civil law forbids many forms of organized gambling, the question arises whether a wager that has been outlawed constitutes matter for a valid contract that must be fulfilled. If the law is purely penal, the contract is valid and the obligations ensue; if it is a law that binds morally, then the contract is invalid, and the loser probably need not pay, but has acted sinfully in gambling.

Although not sinful in itself, gambling is so open to serious abuse that it has been strictly regulated by civil laws which bind in conscience.

Insurance is reduced to the category of contracts of chance, although its purpose is different from gambling, for it is concerned not with an uncertain good, i.e., to make money quickly, but with an uncertain evil, i.e., to avoid loss. In many instances an individual who does not take out insurance gambles more than one who does.

Conditions Requisite for Validity. The special conditions requisite for the validity of an insurance contract are founded upon its aleatory nature. This involves especially that the matter of the contract is in some way outside the control of both insured and insurer and beyond their power, both legal and moral, to govern beforehand. From this follows the second essential condition, that there be some risk for both parties. Some moralists today maintain that many insurance contracts are unjust to the insured by reason of defect of proportionate risk on the part of the insurer. They argue that the insurer avoids all risks and makes increasing profits annually whenever insurance is on such a large scale that the use of statistical tables favors the insurer. The fact that insurance companies are listed among the most wealthy corporations lends credence to the argument and explains why some moralists favor the insured in cases of restitution not involving fraud on the part of the beneficiary. Other moralists insist that such injustice can not be proved, that high profits are owing to increased efficiency and better service, that premiums are adjusted when it becomes apparent that they are out of proportion to the risks involved by the insurers.

On the part of the insurer is required the ability to pay indemnities occurring at the normal rate, but not to cover all at once. His right to the premiums is correlative to the obligation to pay the stipulated indemnities, while his liabilities are based upon probable losses occurring successively. In regard to the insured, his basic obligation is to make an honest and complete disclosure of the risk involved. Moral cases, for the most part, are concerned with error, innocent misrepresentation, and fraud on the part of the insured. Both the natural and civil law indicate the effect of these elements on an insurance contract.

The natural law invalidates a contract in which consent of one or both parties arises from substantial error concerning the nature or the matter of the contract—in insurance, the risk involved. In general, then, whenever the error of the insured is such that he would not have contracted had he known the facts, the contract is invalid, even if the error was due to innocent non-disclosure or misrepresentation on the part of the insured. In such cases, the innocent insured has no right to the indemnity owing to the invalidity of the contract; he has, however, a natural right to all premiums paid out, since no contract is involved and the insurer has no claim to them. In case of fraud, at least after judicial decision, the insured would have no right to the premiums and must also recompense the insurer for expenses sustained.

Error is considered accidental and as not invalidating in natural law when the insurer, knowing the facts, would have issued a policy, but at a higher premium. In this case the beneficiary may accept the indemnity, but must return the difference in the amount owed in premiums.

A special case of substantial error involving a disease unknown to the insured and undiscovered or undiscoverable by the insurance company doctors is considered by moralists as not invalidating a contract in natural law. It is argued that the insurer must assume such risks and that the insured intends to cover such unknown conditions. Moreover, an invalidating clause concerning such a contingency may be considered penal in nature and obligatory only after the sentence of a judge.

Insurance contracts and the civil laws governing them are so complicated that expert legal knowledge is required to understand the legal status of many insurance cases. However, a few dispositions of the civil law which differ from the tenets of the natural law should be kept in mind by the priest or confessor in dealing with the matters. Two favor the insurance companies over the insured:

1. when fraud or misrepresentation lead to accidental error, the contract is declared void or voidable;

2. innocent non-disclosure or misrepresentation in good faith leading to accidental error also render the insurance contract voidable or perhaps even void. It is probable that the beneficiary in such cases might be permitted to claim the benefits due him according to the naturally valid contract, since these civil law dispositions are contrary to the conclusions of the natural law. He would be obliged, however, to restitution for damages caused by his fraud or misrepresentation committed with grave theological fault.

One prescription recognized by civil law and in some places made mandatory favors the insured, the convalidating or incontestability clause. The insurance company recognizes the validity of the policy after a specified period of time has elapsed, even in cases involving fraud on the part of the insured. If the contract prior to the time was voidable, the company loses its right to contest its validity; if the contract was void, it becomes convalidated. By terms of this clause, the natural-law obligation to restore by reason of fraud ceases and the beneficiary may lawfully keep the insurance money.

Obligations Arising after the Policy Is Issued. 1) The insured must pay the premiums at the times and according to the terms stated in the policy.

2. The insured must not increase the risk assumed by the company. Concretely, in cases of property insured, the insured is bound in commutative justice not to deliberately destroy or damage the property covered by the policy under penalty of losing all rights to compensation. Compensation could be claimed, however, if the damaging or destructive action was only theologically right.

3. He must not claim or accept indemnity for articles not damaged; he must not submit a claim beyond a just estimate of the real damage. Some moralists maintain that a claim may be made for a higher amount with the intention of getting a just value after the insurance adjustor has made his investigation and lowered the estimated value. The adjustor’s estimate, even if higher than the insured estimate, may be accepted provided no means have been taken to prevent a full and free examination of damage.

Operations on the stock market and similar markets are primarily contracts of buying and selling; they become contracts of chance when they assume the quality of speculation, i.e., gambling on future changes of prices. It is generally conceded that such contracts are not morally wrong in themselves and follow the laws of betting. Additional justification is added on the ground that such transactions in many instances supply the capital required for large-scale operations, future deliveries, etc. Occasional dissenting voices insist that certain aspects of such transactions, e.g., dealing in future values of wheat, rye, and other commodities, are immoral since they tend to determine prices independent of the real value of the products, the laws of supply and demand, etc. However, the arguments seem to involve more abuses controllable, if not actually controlled, by marketing laws and civil laws rather than any immorality in the operations themselves.

(c) Onerous Contracts.—These contracts require that there be equality between the recompense and the thing received. Thus, in a lease the lessor must not charge excessive rent, and the lessee must pay the rent faithfully; in a contract of labor, the employer must pay a fair wage (that is, one that at the minimum will meet the primary needs of the worker and his family to live in frugal comfort, and which will moreover equal the special value of the service given; for a complete treatment of the theology of the just wage, see Fr. Jeremiah Newman, “The Just Wage,” Theology Digest, Vol. 2, Spring 1957, pp. 120-126, and “A Note on the Living Wage,” by Edward Dui, S.J., in the same issue), and the laborer on his part must give a fair day’s work as to quantity and quality; in partnership, the members must divide the profits and loss according to a reasonable distribution; in guaranty, pledge, and mortgage, justice requires that the burden assumed be not out of proportion to the benefit that is received.

Fraudulent Contracts.—Examples of fraud in contracts are the following:

(a) in gratuitous contracts, a donee who by false representations obtains a gift, a lender who fails to make known to the borrower defects or dangers in the thing loaned;

(b) in onerous contracts, a landlord who conceals defects from one who is renting a house, members of a business concern who keep back information from partners or who give out false statements in order to entice investors, creditors who conceal their knowledge about the unreliability of a man for whom surety is given them;

(c) in aleatory contracts, in a pure wager, a person who bets on a thing supposed to be uncertain but about which he has certain information, or who knows that he will be unable to pay should he lose, or who will allow no odds though he knows that the probabilities are in his favor; in gaming, a player who pretends to be ignorant in order to inveigle another person into a game of skill, or who does not observe the rules of the game, or who fixes the cards or dice for himself in a game of chance; in lottery, a drawer who manipulates the lots so as to favor some of the players, etc.

What are a contract and a pact? - A contract is: an agreement by which one or more oblige themselves to one or more to give or to do something. Agreement, namely by determination and consent in the same thing. To give or to do, and therefore also not to give, not to do. Hence ownership is acquired by private will through various contracts. C. I. 1998; C. G. 1101; C. H. 1254; C. A. 861; L. 707; Lugo d. 22. s. 1. A pact, taken broadly, as it is commonly accepted, is the same as a contract. Taken strictly, it is distinguished from a contract. For a pact is the consent of two or more in the same determination; but a contract is a reciprocal or mutual pact, which on both sides of those making the pact gives birth to an obligation. L. 1, 7 de Pactis D.

Of how many kinds is contract? - A contract is manifold: 1. Unilateral, or giving birth to an obligation in only one contracting party; and bilateral or synallagmatic, giving birth to an obligation in both contracting parties. C. I. 1099, 1100; C. G. 1102, 1103; C. A. 864. A unilateral contract commonly comes under the name of act; and thus it is called an act of donation, act of succession, etc.

2. A contract is gratuitous if it yields to the utility of only one party; it is onerous if the utility of both parties is intended. A gratuitous contract can be unilateral, as donation, or bilateral, as loan for use. An onerous contract is always bilateral. C. I. 1101; C. G. 1105, 1106. - Those things which are acquired from a gratuitous act are said to be acquired from a lucrative cause, for example by donation, legacy, inheritance; but those which are acquired from an onerous act are said to be acquired from an onerous cause, for example by purchase.

3. An onerous contract is either commutative, when each contracting party is obligated to give or do an equivalent; or aleatory, when an equivalent of this kind depends on an uncertain event of gain or loss for each party. Therefore in the former there is contracting about some thing; in the latter there is contracting about the probable hope of acquiring a thing. C. I. 1102; C. G. 1104, 1964.

4. A contract, whether onerous or gratuitous, is either solemn, which is perfected by the formalities prescribed by law, as the contract of marriage before the pastor and witnesses, or a donation performed by a public act; or simple, which is subjected to no peculiar form of law, as sale, lease, mandate, perfected by the private consent of the contracting parties.

5. It is likewise either clothed, which besides the agreement of the parties has some other support, by reason of which an action arises in the external court, for example if delivery of the thing has been made, if a writing of the contract has been made; or naked, which besides the pure pact has nothing else, whence from it regularly no action is granted in the external forum. L. 708; Lugo d. 22. nn. 12-14.

6. It is besides either named, which has its own proper name, as sale, or unnamed, which lacks its own proper name. All unnamed contracts are reduced to one of these four: I give that you may give; I do that you may do; I give that you may do; I do that you may give. Therefore an unnamed contract is real, not merely consensual. Cf. 942. L. 707; Lugo d. 22. s. 2; C. A. 921. From C. I. 1103 and C. G. 1107, all contracts, whether named or unnamed, are subjected to the general rules of contracts.

7. Finally, a contract is either explicit or formal, "which is made with the formal and express agreement and obligation of the parties, as purchase, sale," or implicit or virtual, "which is made only with virtual and tacit agreement and obligation; as, for example, when someone undertakes guardianship or another office, he tacitly obliges himself to furnish those things which by law or custom are annexed to such office. Hence such an undertaking is called a quasi-contract." Struggl 2; C. I. 1140; C. G. 1371. - Cf. here 933, 942.

Note: In Roman Law contracts were divided into contracts of good faith and contracts of strict right. A contract of strict right is one in which that alone is to be considered concerning which express agreement has been made. A contract of good faith is one which is taken not according to the rigor of words, but according to a benign interpretation. Gratuitous contracts are recalled to the former, which received a strict interpretation according to the letter; onerous contracts to the latter, which received interpretation from what is good and equitable. From C. I. 1124, 1131, 1134; C. G. 1135, 1156, 1159, all contracts are of good faith, and must be executed with due equity.

In Roman Law there were contracts which, although for their perfection they did not need things or delivery, nevertheless by disposition of Law needed words; that is, beyond consent explained in whatever way, they needed a certain formula of words, without which there was no such contract as was signified in Law by such a name. This especially proceeded in stipulation, which had to be made in the formulated words of Law, one asking: do you promise that you will give or do this? and the other responding: I promise. Inst. 1. 3. t. 16 de Verbor. oblig. in princ.; L. 5 § Stipulatio ff. e. t. But he who asked was customarily called the promissor. By more recent Law this obligation of words has been altogether removed, and by Roman Law itself that "superstitious formula of Law received moderation." Lugo d. 22. nn. 20-22. At present stipulation is a common name for all pacts or contracts.

Therefore to stipulate today is almost the same as to make a pact, and he is said to stipulate toward whom another contracts an obligation. Regularly no one can stipulate in his own name except for himself, but he can also stipulate for another in his own name, namely for the advantage of another, for example: I give you 100,000 lire on this condition, however, that you give Caius one thousand lire annually during his life. C. I. 1128, 1134, 1137; C. G. 1119 ff., 1165, 1973; C. B. 328 ff.

What about the transfer of ownership through contracts? - To acquire ownership of another's thing, there is need of a title transferring ownership, such as inheritance, legacy, donation, purchase and sale, and other similar contracts.

But from positive law there is sometimes need of public instruments which have a determinate form from positive law itself, as in donation of immovable things and in dotal pacts. C. I. 1056, 1382; C. G. 931, 1394. Sometimes, however, private instruments suffice, as in alienations of immovable things, or of rights cohering with these. C. I. 1314. And these instruments do not hold unless furnished with the signatures of the parties. C. 1316, 1321; C. G. 1318, 1323; C. H. 1226, 1228, 1229. Nor indeed are these same instruments required for the validity of the act itself, but only for proof, unless otherwise at times has been provided by the law itself, or it has been agreed among the parties that the act not be valid as long as it has not been consigned and signed in writing. L. 708. Cf. C. I. 1. 3. t. 4. c. 5. rubr.; C. H. 1278-1280; C. A. 883-887. Likewise, per se, delivery is not needed for the transfer of ownership, but the consent alone of the owner transferring to another and the latter's acceptance suffice. Thus from C. I. 1225, 1448, 1538; C. G. 1138, 1583, 1689. But it is needed from Common Law, L. 20. C. de Pact.; C. A. 425; C. H. 609, 1095. Nevertheless, in order that alienation of movable things be valid as to third parties wishing to vindicate the thing for themselves, delivery is needed. C. I. 707, 1539; C. G. 1689, 2279. But in order that alienation of immovable things be valid as to third parties, in the cases determined by laws transcription is needed. C. I. 1932, 1933; C. G. 939, 941; cf. C. A. 440, 444. And in private instruments, as to third parties, a date legitimately inscribed in the public register is needed. C. I. 1327; C. G. 1328. Hence if the same thing has been sold or leased to several persons, he prevails who first transcribed or registered. Therefore he who sells to another a thing sold to one, and who first inscribes or registers it, is liable for damage, because he injures the acquired right of the first buyer. And the other buyer, who knowingly and prudently buys and transcribes, likewise injuring the acquired right of another, is liable for damage. From C. He. 656, 657, 714, for acquiring ownership of lands inscription in the land register is required. A contract transferring ownership requires for validity a public act. Dispositions mortis causa and matrimonial agreements must be made in the forms prescribed from succession and matrimonial law. For the transmission of movable property, transfer of possession to the acquirer is necessary. From C. B. 313, 873, 925, 929, for transfer of ownership of immovables there is need of inscription in the land register; for transfer of ownership of movables delivery is required.

Is a contract valid as to the forum of conscience if it is destitute of the solemnities prescribed by positive civil law? Solemnities are certain forms of making a contract from the prescription of law, for example that it be made before so many witnesses, in writing, etc. Some are accidental, which pertain only to a certain greater completion, for example that a testament be made on sealed paper, and therefore, if omitted, they do not invalidate the act; others are substantial, which are considered to pertain to the substance, namely when they have an invalidating clause joined to them, as, for example, that a holographic testament be signed by one's own hand. The question is raised about these. There is question about civil law. For as to canon law, the prescribed solemnities of law are altogether to be observed; among these, in alienations, the Apostolic Beneplacit holds the chief place, without which alienations of things of the Church are null. But cf. V. 2. n. 1209. The same is to be said about the form formerly established by Trent, sess. 24. C. I. de R. M., and now by the Decree Ne temere, as to the validity of marriage. Cf. V. 2. n. 1206. But there is question about the contracts themselves, or about the obligations and rights arising from them. There is not question about the acts of contracts, or about the instruments by which contracts are consigned; for acts of this kind rather regard the external forum. Now acts must be done, in order to be valid, according to the forms prescribed by law. If done otherwise they are invalid; nevertheless they can hold as private writings, if they are furnished with the signatures of all the contracting parties. C. I. 1310, 1311, 1316; C. G. 1318, 1339. "A threefold probable opinion is given. The first denies; because laws invalidating such contracts are founded on a presumption not only of deceit, but also of danger; and therefore human law can altogether take away the natural obligation of a contract entered upon... The second affirms... because in those contracts human law, although it denies a civil action, nevertheless does not take away the natural obligation, for which consent alone indeed suffices. The third teaches that in these contracts the possessor is to be preferred until by sentence of a judge he is condemned to restore... This opinion I think not only more probable, but altogether to be held in practice, because... since possession grants a certain right, the possessor cannot be despoiled of the thing unless the right of another is established." L. 711, 927-929.

The first opinion in itself seems more conformable to reason. For not only as to Roman Law, but also as to more recent Laws, what Lugo observes holds, d. 22. n. 252: "The words of the law seem to sound this, nor does Trent, sess. 24. C. I., use almost other words when it invalidates clandestine marriages; nor can words more apt to signify this be used than to declare antecedently the contract null and invalid... If only invalidation of the contract in the external forum were posited, the law would be considered of little utility, since it would serve only to foster the iniquity of him who, conscious of the value and obligation of the contract, would still attempt to despoil a just possessor, taking away because of defect of solemnity what in the forum of conscience could not be taken away from him. And indeed it would be hard to compel judges to favor this unjust petition, when it is established for them that the contract before God held, and that the adversary cannot without sin ask what he asks."

The second opinion seems more conformable to the context of more recent laws. For C. I. 1104; C. G. 1108; C. B. 305, 313; C. H. 1258, 1261, 1278, 1279, 1300; C. L. 643 did not enumerate the forms of contracts among the conditions essential for the validity of a contract. Therefore by these forms they seem to intend only this, namely to determine the instruments or means by which the will of the contracting party can be established before judges. Gousset in the cited article and in art. 1101. Indeed public instruments do not seem to be required explicitly for the validity of the act, but only for proof. C. I. 1. 3. t. 4. c. 5. s. I. rub., 1313, 1314, 1932. 8; C. G. 1315 ff., 1335, 1338; C. H. 1278-1280. From C. A. 883, except for cases determined by law, contracts can be made in whatever form, without diversity of obligation arising from this. From C. H. 1258, contracts are perfected by consent alone.

The third opinion in reality is not distinguished from the first and second, but, admitting both, draws the corollary of both. For the possessor can be both he whom a testament favors, although destitute of legal forms, and he whom the defect of legal forms favors. Then in reality this third opinion would be distinct from the first and second if it were said that the aforesaid laws do not render the act invalid by the law itself, but liable to invalidation by the sentence of a judge, which someone will be able to invoke at his own discretion; and then, as the same St. Alphonsus says, l. c., "without doubt the possessor is bound to stand by the sentence of the judge, if he is condemned to restore." Thus many interpret more recent invalidating civil laws. And it cannot be denied that many such laws in truth do not render an act null in fact, but only rescindable and to be invalidated by the sentence of a judge.

Is someone bound to restitution if, following a probable opinion, he prevents the other party from approaching the judge, who would condemn him and oblige him to restitution? R. "Affirmatively, if he impedes by force or fraud; otherwise, if in another way." L. 888. The first reason is that he injures the right of another; the second, however, that then he legitimately pursues his own right.

What are the essential conditions of contracts? - There are four essential conditions for validly contracting: consent of the party who is obligated; capacity for contracting; a certain object which is the matter of the contract; a licit cause of obligation. C. I. 1104; C. G. 1108; C. H. 1261.

What is consent of the contracting party, and what sort must it be? R. To the first: Consent here is not a simple counsel or purpose of the mind, but a promise of a thing to be given or done, and on each side it must concern the same contract and the same thing. There must be a promise on one side, acceptance on the other, in a unilateral contract; and besides a repromise, in a bilateral contract. When the contract is of itself bilateral, the repromise is tacitly present in the very acceptance, as in sale and purchase. But, if the contract is not of itself bilateral, repromise is not included in the acceptance, as, for example, in betrothals; for someone can accept a promise without repromising. Indeed even in the bilateral contract itself there is not always repromise, and the contract is perfected by its very execution, for example if you write to a merchant that for such a determined price he should send you ten candles, and he immediately sends them.

R. To the second: Consent must be: 1. Internal, for the obligation of contract arises from the will alone of the contracting party. 2. Free and fully deliberate; otherwise the will would be imperfect, and could not give birth to a perfect obligation. 3. External, for it must be manifested to the other party; otherwise one cannot oblige himself to another. But the offer must be manifested to the other accepting party by the same offerer, or by another, but in his name or by his mandate. It need not, however, necessarily be express; tacit consent suffices; and contracts are everywhere made tacitly. 4. Mutual, for in order that someone oblige himself to another by his own will, it is required that this other accept that will. 5. Nor indeed is it necessary that the consent of each party be elicited at the same time. For the consent of one, once given and not revoked, morally perseveres; hence, when the consent of the other accedes, the contract is immediately perfected. - C. I. 1108; C. H. 1262, 1265; C. A. 862, 863, 869; C. B. 116, 117, 130, 147-149, 153; C. L. 647 ff.

Who have, by natural law, capacity for contracting? - By natural law all and only those who have the free use of reason can validly contract. The reason is that all and only these can transfer ownership and undertake obligations. Hence infants, not yet having the use of reason, the insane, the furious, and the perfectly drunk cannot validly contract. They cannot contract, namely per se; for since they can have ownership of property, tutors and curators can contract for them. - Likewise by natural law, all and only those who have free administration of goods can contract firmly.

The reason is that, by the very fact that ownership or administration of goods depends on the ownership or jurisdiction of another, a contract has from the nature of the thing this implicit condition: unless the other, whose right it is to contradict, shall have contradicted. Hence, although religious licitly contract from the presumed will of the superior, nevertheless the contract is revocable by the superior. Although religious Prelates, or administrators of common goods constituted by them, can contract irrevocably in ordinary causes in which the Constitutions concede administration to them without the concurrence of others, nevertheless in those in which they depend on the consent of the Chapter, or Community, or their own Council, they cannot contract firmly and irrevocably without such consent. Struggl 12; Reuter 141. Cf. Instruction of the S. C. of Religious, 30 July 1909.

What sort must the object of a contract be? The object of a contract must be:

1. Possible, both physically and morally, because no one can be obligated to the impossible. Morally possible; therefore if the matter is very difficult, bringing graver inconveniences, unless there is certainty about an explicit will of obliging oneself, this, speaking per se, cannot be presumed. C. H. 1272; C. A. 878, 882; C. B. 306.

2. Existing either in reality or in a certain hope, or likely to exist; otherwise no right could be had in it, as being estimable at no price. From C. I. 1118; C. G. 1130; C. H. 1271; C. L. 1556; C. A. 879, an inheritance succession not yet opened is regularly excepted. Regularly; for this exception does not hold if there is question of a donation because of marriage, or of a contract of marriage, namely so that future successions be included in or excluded from the conjugal community. C. G. 1082-1084, 1091-1093; Gousset in a. 1130; cf. C. H. 826. Or if there is question of division of a future inheritance. C. H. 1056, 1271; C. I. 1044, 1045; C. G. 1075, 1076. Cf. 1010, 1069, 1235. Nor does it hold, according to many from ancient law, if the disposition is made in favor of a religious Community; because the end of the law is only to impede the danger of death being inflicted on the possessor. But where there is question of a monastery there is no such danger. Gur. Cas. v. 2. nn. 111, 112. Cf. C. A. 944, 1177, 1178, 1180; C. G. 943, 947, 1837; C. B. 310, 312; L. 30 de Pactis C.; Monit. Eccl. v. 15. p. 37. In Canon Law, provision of a benefice not yet vacant is invalid. Third Lateran Council C. 8.

3. Honest and licit in itself, that is, prohibited by no law, because no obligation can be given to a dishonest and prohibited thing. S. Th. 2. 2. q. 110. a. 3 ad 5; C. H. 1271; C. A. 878; C. B. 134, 138, 309. "Public law cannot be changed by private pacts." L. 38 de Pactis ff. - But for the validity of the contract it is enough that the object be substantially honest, although some accidental circumstance is illicit.

4. Proper to the contracting party; for no one can transfer to another a right which he himself does not have.

5. Certain and determined as to species, although it be uncertain as to quantity, provided nevertheless that that quantity can be determined in some way. C. I. 1117; C. G. 1129; C. H. 1273. For there can be no obligation of a thing altogether uncertain and indeterminate.

6. That it be in commerce. C. I. 1116; C. G. 1128; C. H. 1271; C. A. 878, 880. - Inst. 1. 3. t. 19. §§ 1, 2, 3.

What about the cause of a contract? - An extrinsic and impulsive cause of a contract is not necessary for the contract to hold. For neither is what proximately determines the contract. Thus the purchase of oxen holds, which I thought necessary for cultivating a field, falsely thinking that my own had perished. - But an intrinsic and motive cause of a contract is altogether necessary for the contract to hold. For this itself is what proximately determines to the contract. In onerous contracts this cause is the utility of the thing at least for one of the contracting parties; in gratuitous contracts, the will of benefiting some person. Utility of the thing, which consequently is almost convertible with the very object of the contract.

Will of benefiting, which is convertible with the very consent of the will. Utility of the thing, that is, the thing in itself which one party gives to the other, or is obligated to give, or the danger which he assumes upon himself. Utility of the thing, and therefore the will of acquiring that thing, or of freeing myself from some obligation. Hence the obligation which I undertook of paying you 1000 francs, as owed to you from the legacy of my father, which afterward I found out had been revoked by him, does not hold. C. I. 1101, 1119; C. G. 1105, 1106, 1131; C. H. 1274, 1276; C. A. 922 ff.; Gousset in a. 1110, 1131; Pothier, tr. delle Obbligazioni p. 1. c. 1. n. 42.

What is the force of obligation in contracts? Each person is presumed to enter into a contract for himself and his own, unless the contrary is established by the contracting party himself, or from the nature of the thing. Any contract duly entered upon gives birth to 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 given to one or to both parties; but to every right there corresponds its own obligation. - An obligation of this kind regards the contracting parties themselves, not third parties, to whom per se they neither benefit nor harm, as a thing done among others, except in cases determined by law. But it extends itself not only to that which is expressed in the pact, but to all consequences which equity, law, and custom demand according to the nature of the agreement. The reason is that all these things are implicitly understood in any agreement, unless one of these has explicitly been derogated from by special pact. And these are customarily called the naturalia of a contract, so that they may be distinguished from the essentialia, cf. 938, and the accidentalia, cf. 936, 943. C. I. 1123, 1124, 1127, 1130, 1131 ff.; C. G. 1119, 1123, 1134, 1135, 1165, 1156 ff.; C. H. 1097, 1255-1258, 1278, 1281 ff.; C. A. 904 ff., 914 ff., 1017, 1019; C. B. 314 ff., 328 ff.; L. 734. If the obligation is in not doing, C. B. 241, and someone has done it, he must repair the damage and is compelled to remove the work at his own expenses. C. I. 1222; C. G. 1143. - But if the obligation is in doing, it is in the creditor's power to do it at the expense of the debtor, C. I. 1220, or certainly the debtor is bound to pay as much as it interests the creditor, if he does not wish to do it. C. G. 1142. Nor indeed can that which is owed be furnished through another, if it matters to the creditor that it be done by the debtor himself. C. I. 1239; C. G. 1237. But it suffices to do it with moderate or common skill; but if he has done it unskillfully, he will be bound also in the forum of conscience. - If the obligation is in giving, what is owed must be given, not another thing. C. I. 1245; C. G. 1243. If the quality of the thing to be given has not been determined, neither the worst nor the best is to be given. C. I. 870, 1248; C. G. 1022, 1046; C. B. 243. If the very thing to be given cannot be given, its valuation is given, according to the value of the time at which it ought to have been given. C. I. 1223. But if money is to be given, it is estimated from its present value. C. I. 1821; C. G. 1895; C. B. 244. The thing is to be given in the place concerning which agreement was made; otherwise in the place in which the thing existed at the time of the contract; outside these cases, in the place in which the debtor now dwells. C. I. 1249; C. G. 1247; cf. C. B. 269, 270. - It is likewise to be given in one payment, although the thing is divisible. C. I. 1204, 1246; C. G. 1220, 1244; C. A. 1415; C. B. 266. - The obligation of giving a thing imports the obligation of preserving it, with the diligence of a good father of a family applied to his own things. C. I. 1219, 1224, 1817; C. G. 1136, 1890.

The contracted obligation is to be furnished in its own time. If no time has been established, it is to be furnished immediately, unless the thing itself induces delay. C. I. 1173; C. G. 1146. Cf. C. A. 1417; C. B. 250, 271. He who in his own time does not furnish the thing owed, or does not receive it, is said to make delay; and each one's own delay harms him, namely if it was not without civil fault in the external forum, or theological fault in the forum of conscience. Hence he who is in delay furnishes the damage which arises from it; but if grave damage is absent, in this a moderate delay which does not exceed the twentieth day excuses in the forum of conscience. C. I. 1219, 1223, 1225; C. G. 1139, 1146, 1147; C. A. 904, 1334; L. 680.

How does the obligation of contracts cease? - The obligation of contracts ceases:

1. Through payment, or through the furnishing of any thing owed, or also through the execution of the object promised or otherwise owed. C. I. 1236 ff.; C. G. 1134 ff.; C. H. 1157 ff.; C. B. 362 ff., 372 ff. Payment is to be made by him who can alienate. C. I. 1240; C. G. 1238; and from C. A. 1421, although he is incapable of administering his own things. If there are several debts, the debtor can impute the payment to whichever he wishes. C. I. 1255 ff.; C. G. 1253 ff.; C. A. 1415 ff. - Cf. Vinnius on Inst. 1. 3. t. 30. nn. 1, 4. - But payment does not hold if the creditor is incapable of receiving, unless it is proved that the payment made yielded to his utility. C. I. 1143; C. H. 1163; C. G. 1241; C. A. 2414. But if the creditor unjustly refuses to receive payment, the debtor is freed by making a deposit of the thing owed in the modes prescribed by law. C. I. 1259 ff. "Nor does it matter who pays, whether he himself who owes, or another for him; for he is freed even when another pays, whether the payment is made with the debtor knowing, or ignorant, or unwilling." Inst. 1. 3. t. 30; C. I. 1238; C. G. 1236.

C. B. 244, 267, 268; C. A. 1423.

2. Through novation, or a new obligation, which is not presumed, but must be expressly established. It has place in three ways: 1. Through substitution of a new debt for an 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 a thousand francs: the obligation of giving wine is then extinguished. Likewise, money is owed from purchase; it is agreed that it be retained as though from a loan for consumption. The effect of novation of this kind is that, once the prior obligation has been removed, its inconveniences also are taken away, and the advantages of the later obligation are received. 2. When a new debtor is substituted for the old, who is therefore freed by the creditor; namely if the debtor substitutes another debtor for himself, whom his creditor accepts, or if another freely promises that he will pay in place of the debtor. 3. When a new creditor is substituted for the old, toward whom the debtor no longer has any obligation. C. I. 1267 ff.; C. G. 1271 ff.; C. H. 1203 ff.; C. B. 364, 398 ff.; C. A. 1345, 1375 ff.; L. 1 Dig. de Novationibus; Inst. 1. 3. t. 30. § 3; Vinn. in this place.

3. Through condonation, or an act by which a creditor from full liberty remits a debt to his debtor. For each one can yield his own right in all those things which do not regard the public good, provided he was not incapable of contracting. It is had by presumption of law if the creditor has returned the security to his debtor, or ordered it to be returned; but by no means if the creditor has returned the pledge, or freed the surety. An acceptilation is called a condonation of this sort, because through it the creditor has as though accepted that which is owed to him. Hence it is said in Law that acceptilation is an imaginary payment. "But just as what is owed is rightly paid in part, so acceptilation can be made in part of the debt." Inst. 1. 3. t. 30. § 1. - C. I. 1279 ff.; C. G. 1282 ff.; C. H. 1187 ff.; C. B. 397.

4. Through compensation, or fictive and reciprocal payment, which has place by the law itself when persons are mutually debtors toward one another. C. I. 1285 ff.; C. G. 1289 ff.; C. H. 1195 ff.; C. A. 1433 ff. - From C. B. 388, a declaration of one party to the other party is needed. - This legal compensation is not had between that which is owed only naturally and that which is also owed civilly; likewise this compensation is not had as to those things which are subject to rescission or restitution in full. Cf. 1471.

5. Through confusion, which has place when the obligation of the debtor and the right of the creditor are joined together in the same person; for example, if the creditor becomes the heir of his debtor, or the debtor of his creditor, or the same person becomes heir of the creditor and debtor at the same time. C. I. 1296 ff.; C. G. 1300 ff.; C. H. 1192 ff.; C. A. 1445; L. Sicut acceptatio Dig. de Solutionibus etc. Cf. C. B. 889.

6. Through destruction or loss of the certain and determined thing owed, which at times frees the debtor from obligation, as in merely gratuitous contracts, and also in others where the fault of the debtor does not enter. But at times it does not free him, for example if it happened by fraud of the debtor, or he was in culpable delay, or he took the case upon himself. Certain and determined, for example such a horse; but something else must be said if the thing was uncertain and indeterminate; for genus and species do not perish. Therefore, if you promised a horse in general, not such a horse, not one of your horses, the obligation remains, even if all your horses perish; hence you must buy and hand over another. C. I. 1298 ff.; C. G. 1302 ff.; C. H. 1182 ff.; C. B. 275, 280; L. Si ex legati Dig. de Verbor. obligat.

7. Through rescission, or rescindability, which has place when a contract, consisting of essential conditions, is dissoluble because of some defects. That contract holds until it is rescinded. C. I. 1300 ff.; C. G. 1304 ff.; C. H. 1290 ff.; C. B. 346 ff.

8. Through prescription, concerning which it has been spoken above. C. I. 1236; C. G. 1234; C. H. 1930.

9. Through contrary will. For "those obligations which are contracted by consent are dissolved by contrary will. For, if Titius and Seius have agreed between themselves that Seius would have the Tusculan estate bought for one hundred gold pieces; then, the matter not yet having followed, that is, neither the price having been paid nor the estate having been handed over, it has pleased them that they withdraw from that purchase and sale, they are mutually freed." Inst. 1. 3. t. 30. § 4. Cf. n. 964.

What is understood by accidental modifications of contracts? - Accidental modifications of contracts are certain extrinsic or intrinsic qualities of contracts which strengthen or weaken their obligation; increase or diminish it; determine, suspend, or destroy it. Now the principal modifications of contracts of this sort, which pertain to the practice of the confessor, are: an oath which extrinsically confirms the contract, and the various modes of contracts by which the obligations of contracts are intrinsically constituted in various ways.

What is the force of an oath added to a contract? A promissory oath is added to contracts in order to confirm them because of reverence for the divine Name. Hence besides the obligation from justice by force of the contract, there is also an obligation from religion by force of the oath. The obligation of an oath affects only the person swearing. For by it we are obligated to God to do what we promised. Therefore, although the obligation of a contract passes to the heirs, as one which affects the goods of the contracting party himself, nevertheless the obligation of the oath does not pass to them. As to the obligation of an oath, the general rule is: An oath follows the nature of the act. For the accessory follows the principal. L. 1. 6. nn. 870, 873.

In Roman Law several contracts, otherwise invalid, became valid and firm by oath. This could well be done by force of the law itself, restoring the natural obligation taken away, or removing the action introduced for seeking restitution in full, because of reverence for the oath added to the contract. By more recent law, contracts otherwise invalid or rescindable become neither valid nor firm. C. H. 1260: an oath is not admitted in contracts, and if it is made it is held as not added. This nevertheless does not prevent someone in conscience from having to stand by the promise and oath by which he freely renounced a favor conceded through the laws, if this renunciation is not illicit and prohibited, and there is question of a favor of a merely private person; for example if someone confirms by oath some simple promise, to which civil law neither assists with an action conceded in the external forum, nor resists, by taking away its natural validity.

What are the various modes of contracts? - The various modes of contracts, by which the obligation of a contract is variously modified, are: contracts of obligation under a condition, with a mode, to a term, alternatively, solidarily, divisibly or indivisibly, with a penal clause, under a cause, under a demonstration. A mode is to be observed from justice, unless it is repugnant to the substance of the contract. Violation of it often does not invalidate the contract, because, namely, it is something merely accidental. If the mode is base or impossible, it is held as not added, nor is the contract invalid, unless the mode is repugnant to the nature of it, or unless the will of the contracting party was altogether restricted to it.

When is a conditional contract had? - What if the condition is impossible or base or potestative? In what way is the condition to be fulfilled? - A conditional contract is when it depends on a future and uncertain event. C. I. 1557; C. G. 1168; C. A. 696. A condition is expressed by the words if, provided, provided that, or even by an ablative absolute, which nevertheless is not always constant.

On an event; for those things which are tacitly present, whether from the nature of the thing or from positive law, do not make the act conditional, although they may have been expressed. Future and uncertain; for if it depends on a past or present event, or on a future but certain event, for example if the sun rises the next day, the contract is immediately valid or null, although it is still uncertain to us.

Therefore a condition concerning the future suspends the contract and its obligation until it is verified; but a condition concerning the present or past suspends only the execution of the contract. C. I. 1161; C. G. 1181; C. H. 1114; Inst. 1. 3. t. 16. §§ 4, 6. Cf. Lugo, Resp. Mor. 1. 4. d. 3. n. 9. - Once the condition has been fulfilled, even if this is hidden, the contract is perfected by the law itself, and has retroactive effect, without need of new consent, just as if it had been contracted absolutely from the beginning. C. I. 1163, 1170; C. G. 1179; cf. ib. 1182. For this reason, if meanwhile the things have become better or worse, the advantage and disadvantage belong to the acquirer. C. I. 1163.

Cf. C. G. 1182. A condition concerning a base or impossible thing renders the contract null both by natural and civil law. C. I. 1160; C. G. 1172; C. H. 1116; C. L. 683; Inst. 1. 3. t. 20. §§ 11, 24. Nevertheless, from the same C. G. 900, donations among the living and by testaments are excepted, in which impossible or base conditions are held as not added. For it is presumed that they were not seriously added with the intention of suspending the contract. From C. I. 1065, a donation under an impossible or base condition is null. And from the same C. I. 849; C. H. 792; C. L. 1743, impossible or base conditions in testaments are considered as not placed. Thus also it is had in Inst. 1. 2. t. 14. § 10. Likewise marriage is excepted in Canon Law, in which impossible or base conditions are held as not added, C. 6 de Condit. appos., provided that the base or impossible condition is not contrary to the substance of the contract.

A contract is null when the condition is potestative, namely one which depends solely on the will of him obliging himself, for example: I will give you 1000 lire, if it shall please me. For a contract of this kind, as is clear, can produce no obligation. C. I. 1162; C. G. 1174. But the contract will be valid if the potestative condition is not the will itself of the debtor, but the will of the other party, or of a third person, or some fact to be fulfilled by one of the two contracting parties. Gousset in the cited article; Troplong, della Vendita c. 1. n. 132 ff.; C. H. 1115, 1256, 1449. A condition is to be fulfilled in that sense in which the contracting parties are prudently considered to have wished to oblige themselves. C. I. 1166; C. G. 1175.

Therefore 1. the will rather than the words is to be looked at. 2. Generally speaking, the condition must be fulfilled in its own form; nevertheless, sometimes it suffices that it be fulfilled equivalently, namely when such is prudently considered to have been the will of the contracting party. Gousset in the cited article; L. 734. A condition is considered fulfilled whenever it stood through him who obligated himself under it that it not be fulfilled. C. I. 1169; C. G. 1178; C. H. 1119, 1122; C. L. 679, 1744; C. B. 162. Before the condition is fulfilled, the creditor can exercise all acts conservative of his right. C. I. 1171; C. G. 1180; C. H. 1121; C. A. 897 ff.; E. M.

When is a resolutory condition of a contract had? - Besides the condition about which we have spoken, which, because it suspends the contract, is called suspensive, there is another condition, which is called resolutory, because, once verified, it resolves a valid contract and restores the parties into the same state in which they were before the contract. C. I. 1158, 1164, 1168, 1183; C. G. 1183; C. H. 1123; C. A. 696; C. B. 158. - When the condition occurs, the contract ceases by the law itself, and has retroactive effect, just as if nothing had been done from the beginning. C. I. 1170; C. G. 1179. - Therefore if the thing meanwhile has been made better or worse, the advantage or disadvantage belongs to the alienator. - Once the contract has been resolved, prejudice is not done to third parties as to rights over immovables previously acquired. C. I. 1511, 1787. - A condition of this kind is understood in every synallagmatic contract, if the other party does not fulfill his obligation. Cf. n. 965. C. I. 1165; C. G. 1184; C. H. 1124; C. B. 159, 160, 161, 346 ff.

When is a contract under a mode had? - A mode must be distinguished from a condition, that is, a merely superadded burden, for example: I give you this estate with the obligation of celebrating so many Masses annually. Now this contract holds immediately, with the burden of fulfilling the obligation remaining on the other party; if the other party does not fulfill it, he sins against justice, but the contract does not therefore fall. C. 4 de Cond. appos. A contract of this kind is said to be with a mode. A mode added for the advantage of the one receiving, for example, I leave a thousand lire to Caius, so that he may buy himself a little field, is regularly as not written, and does not induce restitution. A mode added for the utility of others induces an obligation from justice. L. 734. An accidental or accessory base mode is to be held as not added; a principal or substantial base mode invalidates the act; for example, Titius the sectarian left you an immense sum of money, at the same time willing that you write his eulogy after death in a public newspaper, in praise of the sectarians; Caius left you a sum of money, so that you take care of the cremation of his body and retain the rest for yourself.

When is a contract to a term had? A contract of obligation to a term, or to a determined day, is when, although its obligation immediately arises, nevertheless execution is suspended to a determined day. C. I. 1172; C. G. 1185; C. H. 1125; Inst. 1. 3. t. 16. §§ 2, 3. A term is always presumed to have been established in favor of the debtor, unless otherwise has been agreed. C. I. 1175; C. G. 1187; in favor of the creditor and debtor, unless the thing and its circumstances demand otherwise, C. H. 1127. What is owed to a term cannot be exacted before the established day. If nevertheless it was paid before that day, it cannot be sought back. C. I. 1174; C. G. 1186. Nevertheless it is rightly sought before the day if the debtor has begun not to be solvent. C. I. 1176; C. G. 1188; C. B. 163, 186 ff.

Note: A facultative obligation is not to be confused with an alternative obligation. In it only one thing is obligated; but the faculty is given of substituting another thing for it. Paul left his house to Peter, unless his heir preferred to pay the sum of 10000 lire. Peter cannot exact anything except the house, although the heir can pay him 10000 lire for the house. Hence, if the house perishes by chance, the heir will be bound to nothing; and in this properly lies the difference of one obligation from the other. Gousset 765.

When is a contract of obligation in solidum had? A contract of solidary obligation is either on the part of creditors, namely when the whole credit can be exacted by each creditor, and therefore payment made to one creditor frees the debtor from the trouble of the other creditors, C. I. 1184; C. G. 1197; C. A. 892; or on the part of debtors, namely when each debtor can be compelled to pay the whole debt, so that payment made by one debtor frees the rest as to the creditors themselves. C. I. 1186; C. G. 1200; C. A. 891. This solidary obligation of debtors is not presumed, but must be expressly stipulated. C. I. 1188; C. G. 1202; C. H. 1137. But if one received the whole, he communicates it with the rest; if one paid the whole, he seeks it back from the rest, his own part being deducted. C. I. 1198, 1199; C. G. 1213, 1214; C. A. 896; C. H. 1142, 1143, 1145. - If one of the creditors interrupts prescription, or exacts legal interest, this benefits all. C. I. 1192, 2130; C. G. 1199, 1207; C. A. 891 ff.; C. B. 421 ff. The solidary obligation or right of the testator is divided by the law itself among heirs; and therefore each owes or seeks for that portion by which he is heir; but all owe or seek the whole. C. I. 1203; C. G. 1219; C. A. 888.

When is a contract of divisible or indivisible obligation had? A contract of obligation is divisible or indivisible from a divisible or indivisible object; namely if it is composed of some thing which, when it is handed over, or of some deed which, when it is put into execution, can be divided, or not, whether from the nature of the thing, as a horse; or from law, as a mortgage; or from the acceptance of the contracting parties, as a pair of horses. C. I. 1202; C. G. 1217. If you have bought one hundred casks of wine and twenty perish, the purchase still holds if it was made divisibly. If you donate a horse, and then learn that the horse is not only yours, but yours and your brother's at the same time, the donation does not hold, since it was made indivisibly. From C. G. 1330, obligations are indivisible among the parties; they are applied divisibly only to their heirs. If a debtor dies, to whom there are several heirs, if he himself obligated only one to pay, the obligation is indivisible; otherwise the debt will be divisible.

Likewise, if a creditor dies, to whom there are several heirs, if he himself leaves the credit to only one, who can exact the whole credit, it will be indivisible; otherwise it will be divisible. C. I. 1204, 1205; C. G. 1220, 1221. Those who indivisibly owe something, each owe the whole but not wholly; and those who indivisibly are creditors of some thing or work, the whole is owed to each, but not wholly.

The whole, because the thing is indivisible. Not wholly, because the right or obligation of the whole is not in each one, but in all; and thus if two promised you one hundred gold pieces for buying an estate, both owe you one hundred; hence each is bound to the whole, but each one of them does not owe to give you one hundred, and therefore they are not bound wholly. For this reason he who pays or receives seeks back from the rest, or communicates with the rest, according to each one's part. C. I. 1206, 1207; C. G. 1222 ff. - C. H. 1149 ff.; C. A. 888 ff.; C. B. 356, 420.

If several are obligated divisibly to one, or one is obligated divisibly to several, for example if Titius, Sempronius, and Caius owe 90 lire to Aurelius, or Aurelius owes 90 lire to Titius, Sempronius, and Caius, and Titius, for example, is unable to pay his part of the debt, the other two are not therefore burdened; and if Titius condones to Aurelius his part of the credit, Aurelius is not therefore freed from paying his part to Caius and Sempronius.

Therefore generally if one of the creditors has remitted the debt, or the debt has been remitted to one of the debtors, the whole thing is owed to the remaining creditors, and the remaining debtors owe the whole thing, but with the price of that part repaid which belonged to him who remitted, or to whom it was remitted. If three persons divisibly sell an ox to someone, and by the fault of one after the sale and before delivery the ox perishes, the other two furnish nothing, and nevertheless exact the whole price, namely what is owed to themselves for a third part to each. Pothier, delle Obbligaz. n. 273. If several have divisibly promised one and the same individual thing to one person, for example to build a house, and they have not built it, each is liable for his part of the damage. C. I. 1216; C. G. 1232. Cf. Troplong, della Vendita cap. 4. a. 1647. n. 576 ff.

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.

When is a contract under a cause, or under a demonstration, had? When is a contract of this kind invalid because of error? R. To the first: An obligation under a cause or under a demonstration is when a cause is expressed, or the thing is designated; for example, I leave Titius one thousand lire because he undertook my patronage; I leave Titius one thousand lire which I received from Sempronius.

R. To the second: In a contract under a cause (because), or under a demonstration (I sell this, or so much), error does not invalidate unless it pertains to the essence of the thing. Hence, as to cause, if someone sells to another fields which each considers to be adjacent to fields which that other already possesses, but it happens that other fields are described in the instrument, the contract will be null; but otherwise if one or the other falsely thinks they are more fertile. - If someone contracts with a man as with a physician, who nevertheless falsely professes the knowledge of healing, he is not held by the contract; but otherwise if he summons a certain less skilled physician whom he thinks to be another of the same name, celebrated by reputation. As to the thing, if the error is in quantity, the whole thing is owed if the quantity was designated demonstratively (this); but if taxatively (only so much), the excess of quantity is not owed. Now a thing is considered designated demonstratively if the thing is expressed in the first place, and afterward its quantity; for example, I leave Titius my estate of thirty iugera. But taxatively if the quantity is expressed in the first place, then the thing; for example, I leave three gold pieces in such a box. But the circumstances of things must be weighed, and from them the intention of the contracting party must be investigated. - Gur. 794; Lugo d. 23. nn. 111, 112; Resp. Mor. 1. 6. d. 17; Inst. 1. 2. t. 20. § 29 ff.; C. A. 562, 675, 676, 677, 901; C. L. 1745, 1746.

What is the triple contract? - The triple contract is that by which someone, contributing a thing or money, makes a pact with another partner that, whatever happens, the thing or the whole sum be restored to him with a certain profit, yet less than that profit which he could probably hope for. Or it is a contract of partnership to which two other contracts are joined, namely insurance of the capital and insurance of the profit, or the aleatory sale of the hope of receiving a greater profit for a lesser certain and insured profit. I contract, e.g., with Peter, giving him a sum of money for conducting business. But since the hope of gaining 15 per 100 shines upon me, and on the other side I fear lest I lose the capital, I enter into a second contract with Peter, giving him 5 per 100 if he is willing to take upon himself the insurance of the capital. With this second contract entered into, only 10 per 100 remains for me to gain. But I would prefer a profit still smaller but certain, rather than greater and uncertain. Therefore I propose to my partner that he give me only 5 per 100, but restore it certainly, whatever may come upon us, both the capital and the constituted profit. Hence a threefold contract is given, namely of partnership, of insurance of the capital, and of insurance of the profit. L. 908.

Whether there is an obligation of restitution from contract? Restitution is the restoration of damage given. But damage is said from taking away. Wherefore restitution properly supposes something taken away and as it were diminished from our things. Hence the things which someone owes to another precisely by force of contract or quasi-contract, e.g., by force of sale, purchase, mutuum, commodatum, etc., he does not restore, but renders, as though giving back. Nevertheless, as restitution truly belongs by nature and by law, so also it can belong by pact. And thus, if a borrower by evil deceit broke vessels lent to him, by natural right he is held to restitution.

If by civil fault he did not guard them and lost them, by civil right he is held to restitution. If he took a fortuitous event upon himself, he is also held to restitution, not from natural or civil right, but from pact. Likewise someone is held to restitution and compensation of damages from pact when it is not fulfilled, or if he is constituted in delay. And the same obligation of restitution arises from quasi-contract: "as Princes, who are bound to preserve justice in the land, if robbers increase through their defect, are held to restitution; because the revenues which they have are as it were stipends instituted for this, that they preserve justice in the land." St. Thomas, 2. 2, q. 62, a. 7. - C. I. 1218 ff.; C. A. 919, 1295; Inst. l. 3, t. 14.

1. Lucas and Lucillus at the Mantuan fairs each bought a hundred sacks of wheat from the same merchant, to send them by ship to Venice for the sake of trading. The one hundred sacks of Lucillus having been placed in the bottom of the ship, the sailor placed certain other goods over them, and then the one hundred sacks of Lucas. Lucillus, making the journey by land, arrived at the port near Ferrara, and there sold his wheat; and lest everything be overturned, he handed over to the buyer the hundred sacks of Lucas, which were in the upper part of the ship, since they were of the same quality and quantity. Afterward the ship, going to Venice, suffered shipwreck, and the wheat perished.

Q. 1. Whether consent is required for a contract? 2. Whether that wheat perished for Lucas, or for Lucillus?

R. To the first. Cf. I. M. 938, 939. - To the second. Clericatus, consulted by a Brescian friend, responded that the sacks perished for Lucillus the seller, whose in reality they were, not for Lucas. The true owner of that wheat which was in the bottom of the ship was Lucillus. But every thing, if it perishes by chance, perishes for its owner. Nor can it be said that an exchange had been made, and therefore that dominion of that wheat had been transferred to Lucas. Since in all contracts, by every natural and civil law, the consent of each party is necessary, L. Adeo, ff. de Pactis; and what is ours ought not to be taken from us without our act, L. Ius nostrum, ff. de Reg. Iur.; and finally he who receives another's thing without the consent of the owner is held to restitution. But Lucas, unaware of the thing and absent, furnished no consent, nor could he furnish it, L. Si et me et Titium, ff. Si certum petatur; and therefore Lucillus, without the consent of Lucas, exchanged his wheat and received it without his act. Therefore. Nor does it avail that if he had not received it and had not exchanged it, it certainly would have perished in the shipwreck of the ship. For a thing is not judged from that which will be, but from that which was or is. For future events that are fortuitous and uncertain do not pertain to the justice or injustice of human actions, which are done concerning the present.

But Molina, on the contrary, responded to Portuguese merchants that the thing had perished for Lucas, the absent merchant. The reason is that Lucillus exchanged the sold sacks with as many of his own from the presumed and reasonable will of his friend, converted them to his own advantage, and sold them in his own name. Hence, although there was not in that exchange the actual and explicit consent of Lucas, nevertheless there was present a tacit and presumed consent, which altogether suffices for the contract of exchange. Indeed, Lucillus the seller acted in good faith, and in those circumstances the consent of absent Lucas to an exchange of a thing of wholly the same nature, quantity, and quality was prudently presumed by Lucillus; and Lucas certainly would have given that same consent if, being present, he had been asked. For you are reasonably presumed to consent to that which does not harm you and benefits another. - Casus Consc. Bononen. Dioeces., year 1778, month of June, case 1.

But precisely this is what seems to have to be denied in the case. For the exchange in the case certainly harms its owner, as is clear from the very fact. For, once the exchange has been admitted, Lucas will no longer be able to reclaim his own thing existing in fact. Besides, owners, and especially merchants, are so tenacious of their own things that in reality consent cannot reasonably be presumed to the onerous contract of exchange, notwithstanding those circumstances of the same nature, quantity, and quality of the things. For there is always danger and fear lest perhaps it is not so; lest someone be deceived by fraud; lest another danger of losing one's own thing arise thence. Nor indeed does the aforesaid reasonably presumed consent seem to suffice for exchange, on account of the same nature, quantity, and quality of the things. For otherwise we could almost continually exchange our things with others' things; and certainly no one can admit this. Nor likewise for presuming consent reasonably does friendship suffice, since friendship is then true and solidly preserved when a friend preserves unharmed the rights of a friend. Lastly, if from the aforesaid circumstances of friendship and of equal goodness and quantity of the merchandise, Lucillus could have exchanged his merchandise with that of Lucas, he also could have done this in the hypothesis that Lucas had committed his merchandise to him to sell in that port, and that he himself was going to sell his own at the same price in Venice. For then, evidently, by exchanging his own merchandise with the merchandise of Lucas, and selling it in his own name in that port, he would thereafter expose Lucas to undergoing a new danger of navigation, which in fact was not lacking, with grave damage to him. Wherefore then indeed that consent of the owner as to exchange could reasonably be presumed, when someone would take upon himself every danger of the thing belonging to another which could arise therefrom, and would not deprive the owner of every advantage which could come thence to him, as in the proposed case. Otherwise Rule 48 of law in the Sixth indeed holds: "Someone ought not to be enriched with the injury or loss of another."

2. Certain nuns handed over various estates in emphyteusis for 99 years to a certain Carolus. The contract was perfected on this condition, that the Apostolic Beneplacitum be obtained. A pact was likewise added that the emphyteuta could rescind the contract after 10 years if the canon established to be paid, 3,225 lire, became too onerous to them. Hence the nuns had recourse to the Holy See, that they might obtain the necessary permission; but Carolus also had recourse to the same, asking that that permission not be given, saying that because of the agrarian crisis the aforesaid canon could not be obtained from those estates.

This cause having been proposed in the S. C. C. on 23 Jan. 1897, it was resolved: "There is no place for diminution of the canon, and the Apostolic indult for confirmation of the contract is to be conceded to the nuns."

The reason is clear, because in every contract, one party not consenting and keeping faith, it is not licit for the other party to withdraw from the contract. But in the case this also is added, that precisely because of the foreseen case of diminution of the value of the estates, the pact of rescission after 10 years was added.

Moreover there is question of a monastery of nuns, namely of a moral person, which by law is equated with minors, to whom favor must always be shown. Hence their acts are altogether to be sustained when otherwise advantage would come to others and loss to them. A. S. S., v. 29, p. 591 seqq.

3. "Vincentius, wishing to sell his house at the highest price to Leo, his neighbor, pretends that he is dealing concerning the sale of this house with Ursinus, an angry, quarrelsome man and dreaded by all the neighbors. Then Leo hastens to offer him the required price, lest he obtain so unwelcome a neighbor.

4. Narcissus had received money as a loan from Gordianus, with an agreement about legal interest to be paid yearly. A year having elapsed, Narcissus, paying back the annual census, says to Gordianus: I am unwilling in the future to grant you anything except four for each hundred; but if you are unwilling, I will restore to you all your money. Moreover, he was not going to accomplish this thus; for he needed the money. Gordianus, not adverting to the fraud, furnishes consent."

Q. 1. Whether fraud invalidates a contract? 2. What as to the cases?

R. To the first. Cf. I. M. 943. - To the second. In the first case, "the contract seems valid as to substance, if Leo indeed gladly acquires the house, as being truly useful to him; for although, the fraud being set aside, he would not have bought it, nevertheless he is not properly considered unwilling. Yet, in this case, at least as to the highest price of the house, the buyer is deceived; hence for that excess of price at least he has a right to compensation. - The contract must be held as invalid if the house is little useful to the buyer, so that very unwillingly, or with great repugnance of the will, he bought it, and indeed uniquely to remove from himself so hateful a neighbor; because then the consent is altogether erroneous, or the error or fraud is truly the moving cause of the contract."

In the other case "one must distinguish. Narcissus does not do injury to Gordianus, and therefore is not held to pay five percent in the future, if he had the money or could have it, so that he might refund the principal; because in reality he yields concerning his right of refunding the principal, and that being refunded, Gordianus perhaps will not receive more. - But if Narcissus does not have the money, nor can have it, he lies and does injury, and therefore is held to restitution, because he does not yield concerning the power of refunding, since he lacks that power; therefore he does not have the right of diminishing the pension, and is held to stand by the contract. Nor should you say that fraud intervenes in the first case, just as in the second: for in the first case the fraud is not unjust, since Narcissus has the right of rescinding the contract; but it is otherwise in the second case. Reuter n. 122; La-Croix n. 635, 1018." G. 783, 744; I. M. 943.

5. "Sidonius has a wicked neighbor, from whom he fears most grave evils. For he heard from him threats of death and arson, several times repeated in the midst of quarrels. To compel him to go away, he buys his house at the highest price."

Q. 1. Whether fear invalidates a contract? 2. Whether the contract of purchase is valid in the case?

R. To the first. Cf. I. M. 944 seqq. - To the second. It is controverted. The purchase of the house carried out by Sidonius does not seem to be valid, because, although fear was not inflicted in order to contract, nevertheless the contract is made only to repel an unjust vexation on the part of the other contracting party. It would have to be said otherwise if that fear came from some third party. Reuter n. 127; G. 786.

But, on the contrary, the contract seems to be valid. For there was in it no bad fraud and deceit on the part of the other contracting party; nor was that unjust vexation ordered to the contract. Wherefore, if the contract were valid when that unjust vexation came from some third party, when it came, for example, from the tenant of the house, not from its owner, why therefore will it be invalid if it comes from the owner himself? The contracting party is indeed held to cease from that unjust vexation, and to remove all inconveniences which proceed from it. But thence it does not follow that the contract is void, but only that it is rescindable. I. M. 944.

6. Bertholdus, at an agreed price of one hundred lire, bought from a fisherman whatever fish he would catch by a casting of the net; and from a shepherd of sheep he bought at the price of as many scudi whatever lambs would be born from the whole flock in the coming month of June. But the fisherman caught nothing, and nothing was born from the flock in that month.

Q. 1. Of what sort must the object of a contract be? 2. Whether in each case Bertholdus ought or ought not to pay the agreed price?

R. To the first. Cf. I. M. 955. - To the second. Bertholdus is not indeed held to pay the agreed price to the shepherd, but nevertheless he is held to pay it to the fisherman. Thus the laws openly define. L. Nec emptio 8, ff. de Contrah. empt., then L. Emptorem 12, in fin., and L. Si iactum 13, de Act. empt. And the reason of the distinction is that in the sale of offspring or fruits a future thing is bought; and therefore, if nothing is born, there is no thing either sold or bought. Hence that sale is as it were conditional, which, unless offspring or fruit is brought forth, is not understood to be perfected, as the said L. 8 splendidly says: Neither buying nor selling can be understood without a thing which may be sold. And nevertheless future fruits and offspring are rightly bought: so that when the offspring has been brought forth, then already, when the business was contracted, the sale is understood to have been made. But, on the contrary, in the sale of the catch of fish or birds the hope of the thing is bought absolutely, which shines forth in the very casting, and is estimable by price; hence whether much or little or nothing is caught, the buyer is held to pay the price: For the purchase is contracted, even if nothing should fall in: because it is a purchase of hope, the same L. 8. And certainly, if you buy the casting of the net in such a way that you seem to buy not the hope of the thing, but the future thing, the same reason will hold as concerning offspring and fruits; as if you say: I will give you one lira for any pound of fish whatever; if nothing is caught, I am held to nothing. For a contract has been entered concerning a determinate future thing; if it will not exist, the contract will not be confirmed, and therefore I will be held to nothing. Giribald., de Contr., tr. 3, c. 2, n. 21. - Casus Consc. Bonon. Dioec., year 1778, month of July, case 1.

And these things hold also under the more recent laws. And thus C. I. 1117 says: "The thing which forms the object of the contract must be determined at least in its species. The quantity of the thing can be uncertain, provided that it can be determined." The thing would be indeterminate as to species, and the obligation would be null, if someone, for example, promised another some animal. Likewise the quantity would be uncertain and could not be determined, and therefore the obligation also would be null, if someone were obligated in general to give wheat to another. For he could give any very small quantity of wheat. - And art. 1118: "Future things can form the object of a contract." Namely, insofar as someone contracts concerning a future thing, or concerning the hope of a future thing. For hope of future things is estimable by price. But in the purchase of the catch of fish, of offspring, and of fruits, the thing is determined in its species; and although the quantity is uncertain and unknown, nevertheless it can in some way be determined from the circumstances. The same are the dispositions of C. G. 1129, 1130; C. H. 1271, 1273. And the same also is the resolution of the case from C. A., which explicitly has a contract of the hope of a future thing as an aleatory contract, and therefore the buyer is subjected to the danger of frustrated hope. Cf. C. A. 878, 1054, 1065, 1276. - I. M. 955.

7. Petrus, an Italian, by a private act in Austria made a donation of a rural estate, situated in Italy, to a certain Austrian friend, an excellent Catholic, dwelling in Italy, upon whom, however, he imposed the burden of receiving into his own house and educating a nephew whom he has, whose mother was altogether incapable for this. But after five years Petrus learns that his friend indeed had taken possession of the rural estate, yet had been unwilling to receive into his own house and educate his nephew, lest he assume for himself that grave obligation; but had given to his mother ten thousand lire, that she herself might take care of the education of her own son. Hence Petrus juridically seeks revocation of the donation.

Q. Whether a prescribed form is necessary for contracts? 2. What as to the case?

R. To the first. Cf. I. M. 934, 936. - To the second. From C. I., Preliminary Dispositions 9: "The extrinsic forms of acts among the living and of last will are determined by the law of the place in which they are done. It is nevertheless in the power of those disposing or contracting to follow the forms of the national law, if this is common in all parts." Hence the donation of Petrus made by private act in Austria is valid. For although from C. I. 1056 a public act is required, nevertheless from C. A. 943 even a private act is admitted. And this has place also as to the celebration of civil marriage. The place governs the act. C. I. 100. From the same C. I., Preliminary Dispositions 9: "The substance and effects of donations and dispositions of last will are reputed to be regulated by the national law of those disposing." Wherefore Petrus rightly could seek revocation of the donation. For from C. I. 1080, a donation made with some burden imposed on the donee is reputed made under a resolutive condition; and therefore the donor can seek revocation of the donation because of the non-fulfillment of that burden. Moreover, the burden imposed by Petrus on his friend was fulfilled neither in its own nature and form, nor equivalently, since it is quite a different thing to give that sum of ten thousand lire to the incapable mother of the nephew of Petrus, that she herself may educate her own son at home, and to receive him into one's own house, that he himself may promote his education. - Cf. I. M. 934, 936.

8. Lucanus sold to Rutilius a house sufficiently large, and situated on the principal street of the city, for 20,000 lire. The contract having been perfected by the consent of each, they determined together that on another day the instrument of the contract would be made by a notary, and that the handing over of the house would be made. Meanwhile Germanus, who wished to buy the house, by chance learns of the sale of the house at so small a price and offers Lucanus 40,000 lire. Hence Lucanus refuses to stand further by the contract previously entered, unless Rutilius pays the price offered by Germanus, saying that the contract is not yet valid, because it had not yet been perfected in legal form. What about Lucanus?

R. From C. G. and from C. A. and from C. H., Lucanus is altogether bound to stand by the prior contract of sale. For it was entered in good faith by the other party and by the mutual consent of each; and from C. G. 1582 it is altogether perfect, nor for its validity is it required that it be perfected by an instrument, either public or private. This instrument is required only for proof of the purchase made. C. G. 1315. Likewise from C. A. 883, contracts are valid whether they are made viva voce or in writing, whether in court or outside court, whether with witnesses or without them. And from C. H. 1450 the sale itself is perfected by the agreement of the parties. - From C. I. 1314, sale in the case must be made by public act or private writing under penalty of nullity. Wherefore, this being lacking, the contract is not yet altogether perfect; but although it is valid, nevertheless it is rescindable. Given so great a ceasing profit and arising damage, it seems that Lucanus can invoke rescission, and that Rutilius ought at least to increase the price by half, or the matter is to be settled through equitable arbitrators.

But, in all rigor and given the circumstances of the case, it seems that Lucanus can invoke rescission of the contract, both from C. G., from C. I., and from C. A., by another title, namely lesion, if, the house having been appraised according to its condition and value at the moment of sale, Lucanus was injured beyond seven twelfths parts of the price from C. G. 1674, 1675; beyond half the part of the price from C. I. 1529, 1530 and from C. A. 1060. - I. M. 934, 936, 1126-1128, 1132; G. 776, 777.

9. Osius bequeathed to Maurinus 20,000 lire, if his widowed mother should marry again. Maurinus having died, his mother passes to another marriage. The sons of Maurinus then exact the aforesaid legacy from the heir of Osius.

10. Thomas, dying, bequeathed to Alphonsus, aged nine years, 20,000 lire, to be handed over to him after twelve years, with legal fruits, that is, when he had attained the 21st year of age. Alphonsus dies in the 20th year of age. His parents reclaim the legacy.

Q. 1. What in general is a condition, and what is its force in contracts? 2. What as to the cases?

R. To the first. In general a condition is a circumstance added to an act, upon which the act itself depends. A circumstance, that is, an event; wherefore, that it be truly a condition it is necessary, first, that an event of this sort be added from outside, for example, if some sick man vows to enter religion if he recovers. Those things which are tacitly present, whether by nature or by law, do not make an act conditional if the same things have been expressed, but they only expressly signify that in the act there is to be observed what must otherwise be observed; for example, that someone be absolved at the point of death, the party having been satisfied; that he contract marriage, the Tridentine form being observed, the banns having been made beforehand, etc.; but these being omitted, it would still be valid. S. C. C., 12 July 1721; Pyrr. Corrad., de Dispens. matr., l. 7, c. 7, n. 11; Sanch., de Matr., l. 8, d. 34, n. 29. Second, it is likewise necessary that from the aforesaid circumstance the act depend, and therefore the right and obligation proceeding thence. Wherefore the event ought to be something future and uncertain. Otherwise whatever is done is either immediately valid or immediately void. Besides, it ought to be knowable in a human way; otherwise it vitiates the act, since it always remains uncertain. But an impossible or base condition vitiates acts among the living; but in acts of last will it is held as not added.

Now then, the event either depends on chance and is called casual, or on the will of the agents and is called potestative, or on both and is mixed. C. It. 1159; C. G. 1169; C. H. 1115. But when it exists or fails, either the act then begins to be valid, and the condition is called suspensive, which is most properly a condition and is understood when condition is used simply; or then the act ceases to be valid, and the condition is called resolutive. While a suspensive condition is pending, it is just as if nothing had been done; while a resolutive condition is pending, it is just as if it had been done absolutely without condition. But when that condition is fulfilled or fails, by that very fact, although it is hidden, it immediately exercises its force; nor is there need of a new consent; and it is retroactive, as if either from the beginning nothing at all had been done, if the suspensive condition is not verified, or it had been done absolutely, if the resolutive condition has no place; and it is valid thereafter, since the right and obligation which follow from it can no longer be revoked. - C. I. 1157 seqq.; C. G. 1168 seqq.; C. H. 1114 seqq.; C. A. 696; I. M. 972, 973.

To the second. Maurinus having died, while his mother still remained unmarried, the legacy became lapsed; and therefore his heirs have no right. For the testamentary disposition of Osius has a condition added which binds its validity to the uncertain event of that condition. Wherefore the disposition remains null if the legatee dies before its verification. I. M. 1032; C. A. 703.

Alphonsus having died, his right to the legacy is transmitted to his heirs. For the testamentary disposition of Thomas has an attached condition which suspends its execution, not its value, and therefore the legatee truly acquires a right; and, if meanwhile he dies, he transmits it to the heirs, even though the condition has not yet been verified. But since the added condition is not verified except after twelve years from the death of the testator, and only eleven have passed, the parents of Alphonsus must wait one further year, that they may be able to claim the legacy. But that time having elapsed, they will be able to claim both the capital and all legal fruits from the day of the death of the testator. C. I. 854, 865, 1172; C. G. 1014, 1015, 1185; C. A. 705; C. H. 881, 882, 1125; I. M. 1032, 1056, 1057.

11. Beatrix, by a donation among the living, handed over to Iulia, her sister, an estate worth 15,000 lire, on the condition that while she herself lived she would pay 100 lire yearly to the pastor, destined for educating poor girls. But, Beatrix having died without a testament, Andreas, brother of Beatrix and Iulia, juridically seeks and obtains rescission of the donation, since the donation had not been made by a legal instrument. Hence, by succession from intestacy, half of the field remained to Iulia, and the other half was ascribed to Andreas. But Iulia, having recovered by price the other half of the estate from which she had been evicted, is urged by the pastor to pay the 100 lire attached to the donation; by other consulted men she is obligated to pay back only 50 lire; by others she is freed from every burden. - What about Andreas and Iulia?

R. Andreas, seeking rescission of the donation, seems to act by right, since he relies on a just disposition of law. Wherefore, just as, speaking of itself, the nullity of a testament is legitimately invoked when legal formalities have not been observed, so also the nullity of a donation is legitimately invoked when the form of law has not been observed.

Iulia seems to be held to nothing. For she is not held to pay 100 or 50 lire by title of succession; for she succeeds from intestacy in exactly the same way as Andreas her brother, who certainly is not held to pay those 100 or 50 lire by this title. Nor likewise is she held by title of donation; for the donation was made void, and Iulia lost the estate by this title. Nor also is she held by title of purchase of the other part of the estate. For that part belongs to Andreas, who sells it without such a burden, since he himself does not have such a burden. Finally, she is not held by reason of the estate itself possessed, partly by title of legitimate succession, partly by title of purchase. For that pension to be paid by Iulia is, from the case, a merely personal obligation, since it is to be paid only by Iulia, while she lives, and by no means real, affecting the estate itself. Wherefore Iulia is held to pay neither 100 nor 50 lire. G. 805.

Nor indeed does it avail in the case to object that there is question of a pious donation; and that, as a pious legacy would be valid if the will of the testator were certainly established, so also a pious donation is valid in the case, since the will of the donor is certainly established. For the reason of a legacy and of a donation in the case is unlike. The legacy would be valid, because the legacy is immediately acquired for the legatee from the death of the donor. I. M. 1056. Similarly a pious donation would be owed if, in reality, the donation had been made directly to the pious cause itself, and the thing itself or the estate in the case had been burdened. But no donation was made to the pious cause; the donation was made to Iulia, upon whom the burden was imposed as a condition of retaining the donation, and, by title of the same donation, of furnishing the aforesaid sum to that pious work. But when the donation ceases, by that very fact the condition of the donation ceases, or the burden added to the donation itself and uniquely inhering in it.

12. Titius, a priest, about to make a testament, promises a rich legacy to Bertha, his niece, a most pious girl, if she swears that she will remain a virgin through the whole time of life; and Bertha immediately furnishes this. He further promises to Caia the maidservant a thousand lire by title likewise of legacy, provided she diligently serve his sick mother and marry, only after her death, another nephew, Sempronius, who nevertheless, unknown to the uncle, had already taken a wife. Faith also having been had from Caia, Titius makes the testamentary tablets, in which, however, he inscribes the promised legacies without any condition, and shortly afterward yields his life. - But after the uncle's death, Bertha most miserably loses her virginity. Caia, however, falls into a long-lasting illness, by which she is impeded from offering service to the mother of Titius. Finally Sempronius, who after the death of the mother of Titius had remained a widower, refuses to take Caia as wife.

The science which is concerned with contracts must be judged altogether necessary, especially in our age. For commerce is practiced so far and widely everywhere on earth, and the non-liberal arts are perfected so much day by day, that judgment must very often be rendered in the sacred tribunal concerning the equity of contracts. But here especially appears the difficulty of reconciling the laws inscribed in conscience with the laws of the civil Code. Nevertheless, with God furnishing aid, as we trust, we shall proceed with such caution that, with Doctors of better note as our guides, we may incur the stain neither of untimely severity nor of excessive indulgence.

One must treat: 1. of contracts in general; 2. of contracts in species.

Namely, 1. on gratuitous contracts; 2. on onerous contracts.

Namely: 1. on promise; 2. on donations; 3. on commodatum and precarium; 4. on deposit and sequestration; 5. on mandate and management of affairs; 6. on loan...

Namely: 1. on sale and purchase; 2. on partnership and the triple contract; 3. on lease and hiring; 4. on exchange; 5. on census; 6. on suretyship, pledge, and hypothec; 7. on insurance, wagering, drawing lots or lottery, and gaming.

613. 1. Definition. A contract can be defined as an agreement between two or more persons, by which some right is transferred and a certain obligation is produced.

It is said (a) an agreement, that is, the consent of several persons in one and the same agreed thing: for at least two persons are required, so that a right may be transferred from one to another; moreover, unless the contracting parties consent to one and the same thing, the essential condition for the moral transfer of right will be lacking, namely handing over made by one and accepted by the other.

(b) By which a right is transferred and an obligation is produced; that right can be in a thing or to a thing; for each can be transferred; - but a right cannot be transferred unless by that very fact some obligation is undertaken, or bond of right by which someone is bound toward another to giving, doing, or omitting something.

Hence in a contract three essentials can be distinguished: - (a) consent of the parties concerning some right to be transferred; (b) the object about which consent can be concerned; (c) persons capable of contracting.

Besides, in a contract certain things are said to pertain to its nature, namely those which by law or custom are included in it, unless they are excluded by explicit agreement, e.g., insurance against eviction to be furnished by the seller to the buyer. But accidental things are said to be those which can be added to the contract, but are not judged added unless by a special pact, e.g., delay of payment beyond the time established by law or custom.

614. 2. Various species of contracts.¹ (A) By reason of effect, contracts are: (a) bilateral, or synallagmatic, when they beget an obligation in each contracting party, as are buying-selling, lease; (b) unilateral, which beget an obligation in only one of the contracting parties, such as promise, donation.

¹ Divisions of this kind are found in most civil Codes, but the formalities for a solemn contract are various among various Nations. - For France, cf. Cod. civ., a. 1102-1106; Planiol, II, n. 947-996, Supplement., p. 76*.

(B) By reason of cause, or motive: (a) some are gratuitous, when someone transfers a right to another gratis, that is, without his own emolument, as happens in donation; (b) but others are onerous, when each of the contracting parties receives something of advantage and something of burden, as in sale and lease; (c) finally others are called mixed, when they are partly gratuitous and partly onerous; e.g., if in a sale it is stipulated that only half of the price must be paid by the buyer, - or if a donation is made under an onerous condition, although light. - But, as is clear from the notion itself, mixed contracts are referred to onerous ones.

Every bilateral contract by that very fact is onerous, since it begets an obligation, and therefore a burden, in each contracting party; but there are given onerous contracts which are not perfectly bilateral: thus a loan in which an increase is stipulated is indeed onerous, because each contracting party feels a burden, the lender by alienating money for a time, and the borrower by obligating himself to return the thing with an increase; but it is not properly bilateral, because only the borrower undertakes an obligation.

615. (C) By reason of the thing to be furnished, onerous contracts are: (a) of certain event, or commutative, when the thing to be furnished is certain and at the same time determinate, e.g., if such a thing is sold here and now for such a price; (b) aleatory, or of uncertain event, when the thing to be furnished, or at least the quantity of the thing, depends upon a fortuitous event, as in gambling, insurance, speculations.

(D) By reason of the mode by which they are perfected, contracts are: (a) consensual, if they are perfected by consent alone; and these indeed are called simple, if they are contracted without a special formality; but solemn, if they cannot be contracted validly without certain formalities; (b) or real, which are perfected not by consent alone, but by handing over the thing, such as loan, pledge, deposit.

Likewise by reason of mode, contracts can be entered explicitly, by words, writings, or other signs expressly showing consent; or implicitly, or by tacit consent, or quasi-contract; when, e.g., the office of judge, pastor, is undertaken, by that very fact implicitly, and by force of quasi-contract, the obligation is undertaken of rightly fulfilling all offices attached to the same.

616. (E) Finally, besides named contracts, namely those which have their own name in law, - there are unnamed contracts which lack their own name, and are reduced to four species: (a) I give that you may give; (b) I give that you may do, or omit doing; (c) I do that you may do, or not do; (d) I do that you may give.

620. Principle. For the validity of a contract, consent by natural law must be: 1. internal and free; 2. external, or manifested by external signs; 3. mutual.

1. Internal and free, that is, not feigned, nor indeliberate or coerced, but furnished from the soul, with that advertence and liberty which are required for a truly human act, and with the intention of obligating oneself. For by a contract a right is transferred and a moral obligation is undertaken; but a right, since it is a moral power, cannot be transferred without a moral and free act; likewise a moral obligation cannot be undertaken without a truly human act, and therefore one internal and free.

Therefore consent uttered in jest, or merely presumed, or given on the condition that it can be withdrawn at pleasure, does not suffice for a contract; nor consent furnished by him who is actually drunk, hypnotized, or insane.

621. Corollaries. (A) He who consents fictitiously, although externally he seems seriously to utter words, in fact does not perfect a contract. But in the external forum, both civil and ecclesiastical, consent seriously given is deservedly presumed to be internal, until the contrary is morally certain.

(B) He who, coerced by no force, consented fictitiously, has unjustly inflicted damage upon another, and from justice is bound to repair it; but often the damage cannot be repaired except by furnishing true consent, and therefore by perfecting the contract.

(C) He who enters a pact with the intention of obligating himself, but with the mind of not fulfilling the obligation undertaken, validly contracts, undertakes a true obligation, and is bound to fulfill it; for for the essence of a contract the intention of undertaking an obligation suffices, which is included in the will of contracting. - Yet, if someone were to manifest the intention of not fulfilling the obligation, saying, e.g.: I promise you one hundred coins, which nevertheless I shall never give, such a mode of speaking could be held as a jest.

622. 2. External, that is, manifested by sensible signs; for since contracts are entered among men, who cannot understand the intimacies of the heart unless they are externally manifested, merely internal consent by no means suffices for the validity of a pact.

By natural law it is not required that consent be expressed by words, but any external sign suffices by which the mind of those making the pact is clearly understood. But often by civil law it is commanded that consent be manifested by words or writings, so that lawsuits may more easily be guarded against.

But silence, or taciturnity, generally is not held for consent unless from the circumstances it signifies assent. Now in gratuitous contracts, as in donation, silence can for the most part be held as acceptance; yet not so in French law (below, n. 681); for in favorable things, he who is silent seems to consent; but otherwise in onerous contracts, since no one is judged to undertake an obligation unless he manifests consent by some sign.

Hence, if publishers of newspapers, by sending papers to various persons, declare that the price of subscription is owed by those who do not send the newspapers back, silence cannot be held as consent, at least where civil law decrees nothing concerning this matter.

623. 3. Mutual, or furnished by each contracting party concerning the same object after the notification of at least one to the other. For there are at least two contracting parties, namely one who proposes, or offers, something, and the other who accepts; and therefore, if the consent of either party concerning one and the same thing is lacking, there will no longer be a contract. This indeed is clear where the question concerns a bilateral contract, since no one can obligate himself without some consent; and it holds also for a unilateral contract, because no one acquires a right unless he accepts the thing offered.

It is not required that each contracting party elicit or signify consent at the same time, but it suffices that the consent of one morally persevere when the other expresses his consent or at least manifests it to the other: for then both truly consent to the same agreed thing. Hence a contract between absent persons can be perfected through a procurator, letters, or by the help of telegraph or telephone.

624. Corollaries. (A) He who has offered some thing to another can by natural law recede from his promise as long as it has not been accepted by the other; for a mere offer does not bind unless after it has been accepted. - He can moreover determine the time within which the other must consent, saying, e.g., I offer you this horse for one thousand coins, if you consent within three days; then, if the other consents within this time, the contract has force; but if after the elapsed time, it does not have force, because the prior consent no longer virtually perseveres. - If no time has been fixed beforehand, the consent of the offerer given absolutely is judged to continue until it is revoked; but sometimes civil laws define something concerning this matter, which, as determinative of right, obliges in conscience.

(B) When a contract between absent persons is perfected, it is doubted whether it is entered at the time at which the accepting party expresses his consent, or only at that time at which this acceptance becomes known to the offerer.

(a) In gratuitous contracts, by natural law the contract is perfected as soon as acceptance is manifested by an external sign, even if it is not yet known to the offerer; for, in a favorable thing, silence itself is held as consent, and a fortiori positive acceptance, even if not yet notified. - Yet sometimes, by civil law, acceptance notified to the donor is required, as happens in France for solemn donation.

(b) In onerous contracts, the matter is controverted; some affirm that acceptance suffices, without its being notified to the other; for since the consent of the offerer perseveres, now there is the consent of two in the same agreed thing; - but others deny it, because as long as the offerer does not know the acceptance, he can revoke the consent previously given. Each opinion is probable; hence the matter must be defined by civil law or custom, which is not the same among various Nations.¹

¹ Thus, in France, jurists generally teach that a contract does not have force until after acceptance has become known to the offerer (Planiol, II, n. 986); the same prevails in Germany, from art. 130 of the Civil Code.

625. 1. Notion and species. Error is a false judgment concerning some matter; speculatively indeed it differs from ignorance, which is the lack of knowledge; but practically and juridically error and ignorance produce the same effects. - It matters little whether the error is an error of law or an error of fact.

Error is substantial or accidental, according as it concerns the essence or the accessories of a contract. - In our matter, the essence or substance of a contract is that about which consent is principally borne.

Now error is held as substantial: (a) when it falls upon the very nature or species of the contract: e.g., if someone thinks the question concerns sale, while the question concerns lease; (b) when it falls upon the thing itself, e.g., Titius intends to sell such a white horse, while Caius wishes to buy another red horse; for then there is no consent concerning one and the same thing; (c) when it concerns a substantial quality, to which consent is attached, so that the consent would not have been furnished if it had been known that this quality was lacking; thus, e.g., he who buys a gilded chain as a gold one; he who procures new wine as old.

On the contrary, error is reputed accidental which concerns less principal qualities of the thing, to which the contracting parties do not attach their consent. - Yet it can happen that someone in fact, because of a special motive, attaches consent to an accidental quality; then it is called accidental error giving cause to the contract.

626. 2. Principles. (A) By natural law, substantial error renders a contract invalid. For he who errs concerning the substance of the thing, or the very nature of the contract, or a substantial quality to which he attaches consent, does not furnish true consent concerning the matter about which the contract is concerned.²

² By French law, error concerning a substantial quality makes a contract rescindable, but not null. Cf. Planiol, II, n. 1053.

627. (B) Accidental error of itself does not render a contract invalid; for, for the value of a contract, consent in the substance of the contract suffices; but this can consist with accidental error, which, as was said, does not fall upon the substance of the act, but only upon accessories.

I said: of itself; for it can happen that someone in fact attached his consent to some quality or accidental circumstance; then the error, although accidental, truly gives cause to the contract, and, in the internal forum, the consent is null. - But in the external forum, the contract is held as valid, unless from circumstances or explicit declaration this can be proved; for the security of commerce demands this; for if it were permitted to each one to rescind a contract by asserting, without any proof, that he had attached consent to such or such an accidental quality, scarcely any contract would exist whose validity was certain.

Hence if a priest buys blue cloth, thinking it to be black, for making a cassock, the purchase is null, because from the circumstances he attached his consent to the black color. But if someone, in buying a horse, erred about the color, without having manifested anything about his intention, the contract is valid, because from the circumstances one could not suspect that he wished to buy a horse of white color rather than red.

628. Corollaries. (A) Error concerning the person does not invalidate a contract, unless the consent of at least one of the contracting parties was attached to such a person, because of his special qualities or reasons; this is clear from what has already been said.

Thus if I buy a book from Victor, thinking him to be Jacob, the contract has force, because, as is supposed, the principal intention is to buy the book, by whomsoever it is sold; - but if I wished to have a painted picture from such a celebrated painter, error concerning the person invalidates the contract: in which case, however, the painter who in good faith began or completed the work must be furnished unharmed; - in gratuitous contracts, error concerning the person invalidates the donation, as often as this is made with regard to the person, so that someone wishes to give only to this person; otherwise, if the prevailing intention is to give something to the poor.

629. (B) Error concerning the extrinsic motive of the contract does not invalidate it, unless the pact was entered conditionally.

The matter is explained by example. Titius buys a horse, because he falsely thinks that his own horse has perished; but he is altogether silent about this motive: certainly the contract has force, because otherwise the security of commerce would perish; - he manifested the motive to the other contracting party, without however adding any condition to the purchase: more probably the contract has force, at least in the external forum, because a sufficient reason of paying the price subsists, namely the value of the horse; - but if he bought under the condition that the horse which he already has is dead, the contract is invalid, because the condition was not fulfilled.

630. 1. Notion. When the error of one contracting party is induced by the frauds or fallacies of another, fraud is present. Therefore here we suppose that fraud is joined with error; for if the contracting party detects the fallacy and nevertheless contracts, consent is not vitiated. - But fraud can be substantial or accidental, as was said concerning error.

631. 2. Principles. (A) Substantial fraud renders a contract null by natural law; for it destroys consent. Besides, the deceiver is bound to repair the damage unjustly inflicted upon the deceived, from what was said above, n. 466 sq.

(B) Accidental fraud giving cause to the contract, that is, truly moving the other to contract, by natural law makes the contract not invalid, but rescindable, at the option of the deceived person. For, on the one hand, accidental fraud does not remove consent; but on the other, it unjustly injures the freedom of making a pact, and therefore the deceiver must repair this injury; but this can be done in no more efficacious mode than by making for the deceived party the faculty of seeking the rescission of the contract and compensation of the damage inflicted from this.

(C) Accidental fraud which in fact does not have influence upon the contract does not stand in the way of its validity, because it neither removes consent nor efficaciously injures freedom.

632. 3. Corollary. If a contracting party has been deceived by a third person, without the cooperation of the other contracting party, the contract will indeed be null by natural law, if the error was substantial; otherwise, it will be valid; - but in either case, the damage inflicted upon the deceived person must be repaired by the deceiver, not by the innocent contracting party. The former is clear from what was said concerning error, n. 626; the latter, from what was said concerning the damager, n. 466.

633. 1. Notion and species. (A) Force, or violence, is sometimes physical and absolute, when someone, e.g., is physically compelled to sign a contract against his own will: then by natural law there is altogether no contract. - But more often force is only moral and is produced by threats; it is usually defined: a motion brought from an extrinsic principle against the inclination of the will. In this sense, it does not substantially differ from fear, which from Roman law is described as: trembling of mind on account of some impending evil; - namely force is as it were the cause of fear: for when moral violence urges, the mind begins to tremble, or to fear.

(B) Fear is grave or light, according as the trembling of mind disturbs the mind more or less; hence subjectively, and in the internal forum, the gravity of fear depends on the trembling of mind itself; but objectively, and in the external forum, its gravity depends on the gravity of the evil itself which threatens.

Hence fear can be absolutely and relatively grave: absolutely, when the evil which is feared is so grave, certain, and impending that it can disturb a steadfast man; - relatively grave, when the evil of itself does not suffice for moving a man, but in fact seriously disturbs the contracting party, account being had of that person's age, sex, or condition.

But fear is light when the evil which is feared is light, or indeed grave, but not certainly or immediately impending, so that it does not seriously move the mind.

634. 2. Principles. (A) Extreme fear, which altogether disturbs the use of reason, by natural law invalidates a contract, since it removes the freedom necessary for contracting.

635. (B) Fear, even grave, arising from a natural cause, or justly impressed, does not invalidate a contract, provided it does not impede the use of reason. For, even if the consent is not perfectly free, but given with some repugnance, nevertheless it is furnished voluntarily and prudently; moreover no injury is done to the contracting party; therefore the contract is neither invalid nor rescindable.

Thus the contract has force of him who, in a fire or shipwreck, seized by fear, offers to another a sum of money so that he may be snatched from danger, provided the promised price is proportioned to the work furnished; or of him who offends another, and, from fear of penalty, promises money lest the matter be brought to the judge.

636. (C) Grave fear, unjustly impressed for extorting consent, by natural law invalidates gratuitous contracts, - but makes onerous contracts rescindable, at the option of him who suffered the fear. (a) It invalidates gratuitous contracts; for for the value of a gratuitous contract altogether free consent is required, since the cause of this contract is the liberality of the giver; but grave fear, by which consent is unjustly extorted, destroys this perfect freedom. (b) It makes onerous contracts rescindable; for for the value of these pacts that freedom suffices which is required for undertaking a grave obligation; but such freedom can consist even with grave fear unjustly impressed; for although the mind is disturbed in some way, it can sufficiently apprehend the nature of the obligation which it undertakes, and freely embrace it. - Yet since injury is inflicted upon him who suffers grave fear, he can seek the reparation of damage by demanding the rescission of the contract.

We suppose in this case that consent was truly furnished; for if he upon whom fear is impressed furnishes only external assent, in order to avoid grave damage, the contract is null; thus, e.g., if a traveler promises money to a robber, in order to avoid death.

Besides, by positive law contracts entered with grave fear can be invalidated; thus by canon law religious profession, vows, or marriages entered from grave fear are invalidated.

637. (D) Grave fear unjustly impressed, not indeed for extorting consent, but for another end, makes a contract rescindable if it is impressed by the other contracting party, because this party is bound to repair the damage which he himself inflicted; thus if someone promised money to a calumniator so that he would abstain from defamation, he can rescind the contract. - But if grave fear of this kind was impressed by a third person, the contract is valid, because the contracting party himself inflicts no injury; thus if someone, attacked and terrified by a robber, promises money to a traveler coming by, so that he may be freed from this danger, he is bound to give the promised price.

638. (E) Light fear is not considered in the external forum; but in the internal forum it more probably invalidates gratuitous contracts, for which perfect liberty is required; and, according to some, makes onerous contracts rescindable when it truly was the cause why these were entered; but it by no means stands in the way of their validity if it did not give cause to them.

639. Principle: In order that a contract be valid, the matter about which it is concerned must be: 1. possible and existing; 2. determinate; 3. proper to the contracting party; 4. licit and honorable.

1. Possible and existing. (A) Possible indeed; for no one can obligate himself to the impossible; hence if the thing is physically impossible, e.g., if someone promises to migrate to the moon, the contract is null; but if the thing is morally impossible, that is, very difficult, the contract has force, but no one is judged to wish to obligate himself unless he explicitly said this, e.g., if he expressly promised to climb a mountain whose ridge rises into a high peak. If the object of the contract is divisible, and partly possible, the contract has force as regards the possible part, because the useful ought not to be vitiated by the useless.

Sometimes the thing which was promised, from unforeseen circumstances, e.g., illness or wound, becomes impossible for the contracting party himself; nevertheless the contract of itself remains valid if the contracting party can furnish the same through another without grave inconvenience.

He who by his own fault brings it about that the matter of the contract becomes impossible (e.g., because he is guilty of negligence), is bound to repair the damage inflicted upon the other contracting party from this; otherwise, if he was culpable in no way, e.g., if without his fault there arises a general cessation from work (greve generale).

(B) Existing in reality or at least in hope; thus fruits of an orchard, not yet ripe, - crops, before they are white for harvest, can be sold; for even a right to a thing is something estimable by price; but if a thing exists neither in reality nor in hope, its dominion certainly cannot be transferred.

640. Corollary. Hence things which are not placed in commerce, nor estimable by price, cannot be the object of a contract.

Thus by natural law the following are outside commerce: things which cannot be occupied, such as air, the ocean, etc.; likewise those things which it is not licit to estimate by price, such as the votes of electors or judges.

By divine or ecclesiastical law certain sacred things cannot be sold, such as sacraments, sacred oils, indulgences.

Likewise by civil law certain things are prohibited from being bought and sold, e.g., those which pertain to public dominion, public offices and functions; concerning these the civil Codes can be consulted.

641. 2. Determinate or at least determinable; for no one can obligate himself to something altogether indefinite. Wherefore two things must be determined: the quality of the thing, at least as regards the species, and its quantity: but this sometimes is defined mathematically, e.g., if ten pounds of sugar are sold; sometimes morally, e.g., if someone for such a price promises to furnish the wheat necessary for the support of some family for an entire year.

642. 3. Proper to the contracting party; for no one can transfer to another a right which he himself in no way has; hence the donation or sale of a thing which a thief has unjustly taken away is invalid. - But if someone has a thing in hope, by natural law he can sell it; yet generally positive laws invalidate the sale of an inheritance which is expected from a person still surviving; and deservedly, lest either contracting party desire and procure the death of this person.

(a) Hence generally each one can promise something to be furnished by himself, but not by another. - Yet someone can contract with another concerning a thing to be furnished by some third party, insofar as he obligates himself to take care that the other give or do the thing concerning which the contract is made: if the latter refuses, he who obligated himself thus must furnish the other contracting party unharmed. Thus, in the partition of an inheritance, Charles can promise that his absent brother Augustus will ratify the same; and under this head he is bound to take care that Augustus assent to the partition.

(b) A stipulation can be made between two contracting parties in favor of a third person; thus Titius can promise to pay a certain sum of money each year to an insurance company, so that, at the time when he himself dies, twenty thousand coins may be given to his nephew.

643. Corollaries. (a) When something is already owed to another from strict justice, one cannot contract concerning the same; thus a judge cannot accept something for a just sentence which from office he is bound to pronounce; for he obligates himself to nothing new, nor therefore under this head can he accept a price.

(b) But if something is owed from charity alone, or another virtue, a contract concerning the furnishing of this thing is indeed illicit, but not invalid; e.g., a physician, who from charity ought to furnish his work gratis to some poor man, validly makes a pact with the same about receiving some reward.

644. 4. Honorable and licit: for no one can obligate himself to something evil, nor demand that an illicit thing be done.

(A) Wherefore if two entered a pact concerning an illicit thing, or under a base condition, - e.g., I give you one thousand coins that you may kill Titius, or if you kill Titius, it is certain that the contract is invalid before the evil work has been perpetrated; and therefore neither contracting party is bound to fulfill it, but each is bound to recede from it; indeed, if the price for the base action has already been paid, it must be restored.

645. (B) After the work has been perpetrated, it is controverted whether one contracting party is bound to pay the promised price, and the other can licitly demand and retain it. - All indeed acknowledge that the price must be paid when the thing which was promised is good in itself, although from an accidental circumstance it was illicit; e.g., if a reward was promised to one working servilely on Sunday. - But the question is whether the same must be said when the matter concerns a thing evil in itself.

646. (a) The first opinion teaches that the contract is void, even after the work has been perpetrated, and therefore that the price is not to be paid, nor, if paid, can it be retained.¹ For 1) the promised reward is not owed as the price of the illicit thing, since this is not estimable by price, but rather worthy of chastisement; nor by force of promise: for a contract invalid from the beginning cannot be strengthened by the passage of time; 2) moreover the public good demands that such a price cannot be exacted: for if after the crime has been perpetrated it can be exacted, but not before, the evildoer by that very fact is induced to perpetrate the crime immediately, lest he be deprived of the agreed reward. Hence generally civil laws prohibit the promised price from being paid, because deservedly it is judged to be nothing other than an incitement to crime.

¹ Comitolus, Resp. moral., l. III, q. 5; Carriere, n. 331-338, with many authors alleged there; Beusch, cap. IV, n. 272; Gousset, n. 753.

647. (b) The second opinion holds that, after the work has been perpetrated, the price can be exacted.² For 1) an illicit work, although by reason of fault and formally as a sin, is not estimable by price, nevertheless materially taken, insofar as it is an action useful or pleasant to one, but laborious and dangerous to another, can be estimated by price, and is worthy of reward. 2) Moreover the contract of which there is question is composed of two contracts, of which one is a promise concerning an evil thing (I promise you one thousand coins that you may kill Titius), but the other is concerning the paying of the price, if the evil work has been perpetrated (I give you one thousand for the killing of Titius); the former contract, as concerning an illicit thing, is invalid, but the latter has force, because it is not concerning an illicit thing, but concerning the paying of the price for a material work, which is estimable by price. 3) The Sacred Penitentiary seemed to confirm this opinion when it declared that a prostitute can retain the price of prostitution.³

² St. Thomas, 2. 2., q. 32, a. 7; q. 87, a. 2, ad 2; Lugo, de Justitia, disp. XVIII, n. 45-74; Billuart, diss. I, art. 8; St. Alphonsus, n. 712; Ball. P., n. 581-599; Noldin, 517, and others sufficiently commonly.

³ Sacred Penitentiary, April 23, 1822, in Carriere, n. 338. Doubt: - "A prostitute who obtained a great sum of money by granting the use of her body to various lovers has very recently been converted. Is she bound to restore every price of her crimes, or only a part, or to spend it on pious works? And if she is held to either, is it from strict justice, or only from counsel? N. B. this prostitute, restitution having been made, would not be reduced to the greatest poverty." - The response was: "The penitent woman is not to be compelled, but to be exhorted, that she spend the price of prostitution, according to the judgment of a prudent confessor, for pious uses."

648. If it is permitted to disclose our mind, we think that the contract, even after the delict has been perpetrated, remains invalid: for a contract invalid from the beginning cannot be strengthened; and moreover the alleged distinction of a twofold contract does not seem to rest upon a solid foundation: for morally there is one contract, and, since the act is illicit from its own nature, the labor annexed to it cannot be said to be estimable by price. - But, if he who acted illicitly has suffered some damage, under this head he can receive proportionate compensation; thus perhaps the decision of the Sacred Penitentiary adduced above can be understood: namely, the prostitute can retain the price accepted as compensation for damage inflicted upon herself; and in the same way not a few theologians who favor the second opinion can be understood.

649. Practical conclusions. (a) Today, in most regions, civil laws declare invalid contracts entered concerning an illicit thing; and, since they were passed for the common good, they oblige in conscience, at least after the sentence of the judge. Therefore he who promised money for a dishonorable thing is not strictly bound to pay it, even after the work has been perpetrated: for he can use the benefit conceded to him by law, especially since, with natural law inspected, the matter is doubtful; but by natural law he must compensate damages which followed from this work, according to the principles explained above concerning the unjust damager.

(b) Moreover he who, after the work has been perpetrated, has accepted the price promised to him, can retain it with a safe conscience if it does not exceed the limits of just compensation owed to him for the damage inflicted; but if the price exceeds these limits, he is indeed to be exhorted, but not compelled, to restore this excess.

650. (c) If someone, without any pact, has accepted gifts which, all circumstances being considered, are given for this end, that the donee may be induced to sin, these are not necessarily to be restored from strict justice, because they can be regarded as gratuitous gifts. But restitution is altogether to be counseled, lest from the retention of the gift someone be enticed to sin; thus, e.g., an honorable woman who from the circumstances understands that many things are being given to her by a man so that she may act more freely with him, must firmly reject all these things if she wishes to remain chaste.

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.

1. DEFINITION.—A contract (contractus, pactum) is a mutual agreement between two or more parties, recognized by law as creating an obligation to do or to omit a particular thing, and productive of a permanent claim in one or both parties.

2. CONDITIONS NECESSARY FOR VALIDITY.—To be morally valid and binding, a contract must comply with certain conditions, both on the part of the contracting parties and as to matter and form. With due regard to the properties which belong to a contract by natural law, positive legislation may and does regulate the details with regard to conditions as well as concerning different forms of contracts, in conformity with natural justice and the common welfare.

a) The parties to a contract (subiectum contractus, contrahentes, paciscentes) must be naturally and legally capable of entering into an agreement, and they must enjoy the use of reason and freedom of action, because a contract is a human act.

b) The matter of a contract (materia sive obiectum) must be something morally and physically fit to form the object of an agreement.¹ Hence an agreement which violates an inalienable right of one of the contracting parties, or of a third party, or the laws of morality, or which demands something impossible, is immoral and therefore invalid. If, however, a man has performed an evil deed in conformity with a contract into which he has entered, he may, without committing an additional sin, receive and keep the reward due to him, though it would be better to devote it to some good purpose (ad pias causas).²

¹ J. P. Gury, S. J., Comp. Theol. Mor., Vol. I, n. 726: “A contract is an agreement by which one or more persons bind themselves toward one or more others to give, do, or omit something.” Idem, ibid., n. 727: “The matter of a contract generally consists of things and deeds, or all those things which can fall under human dominion and over which contracting parties have full ownership and free administration. The matter of a contract must possess various conditions; namely, it must be possible, existent, honorable, proper to the contracting party, and certain. 1. Possible, both physically and morally, because no one can be bound to the impossible; 2. Existent either in fact or at least in a certain hope, or probably going to exist, otherwise no right over it could be had; 3. Honorable and lawful, that is, prohibited by no law, because an obligation concerning a dishonorable and forbidden thing cannot be given, as is evident; 4. Proper to the contracting party, as is evident from the definition, for no one can transfer to another a right which he himself does not have; 5. Certain and determined, whether as an individual thing or in quantity and quality, for otherwise the contract would be illusory.” Cfr. Lehmkuhl, S. J., Theol. Mor., Vol. I, 11th ed., n. 1240 sqq.

² St. Thomas, Summa Theol., 2a 2ae, qu. 32, art. 7, ad 2; qu. 62, art. 5, ad 2; qu. 87, art. 2, ad 2.—St. Alphonsus, Theol. Mor., l. III, n. 712 (ed. Gaudé, II, 176).—J. P. Gury, S. J., Comp. Theol. Mor., Vol. I, n. 730.—S. Poenit., d. d. 23 Apr. 1822: “A penitent woman is not to be compelled, but is to be exhorted to expend the price of prostitution for pious uses, according to the judgment of a prudent confessor.”

An immoral contract is per se invalid and binds no one. But since the matter or object may be separated from the motive, one who has demanded and received an immoral act from another, may be obligated to perform his part of the bargain, provided the act demanded of him is possible and honorable. A man who hires another to set fire to the house of a third, enters into a contract which is per se invalid. If the hireling lives up to his part of the agreement, is the hirer obliged to pay him the promised sum, and may the hireling keep the money? The answer is yes, regardless of what may be said of the disproportion existing between the sin and its reward. The reward is paid not on account of the sin involved in the undertaking, but on account of the material performance, which is not in itself sinful, since the malice lies not in the deed itself, but in its form and motive. The reward is given for the labor performed, for the care involved in the choice of the proper means, and for the risk assumed in the undertaking. That the hireling is thereby encouraged to commit other similar crimes aggravates the sinful character of the contract, but is not a sufficient reason for withholding the contractual reward, to which he has a right. He may retain the wage for his labor, even if that wage exceeds the one usually paid for similar material labors, because the risk involved is exceptional. From the moral point of view, money thus received is rated as ill-gotten gain, and whatever portion of it is not needed for the sustentation of life, is subject to restitution, though it need not be given back to the person from whom it was received, but may be donated to charity.³

³ F. X. Linsenmann, Lehrbuch der Moraltheol., pp. 533 sq.

If a man has made a present to a woman with the intention of seducing her, she may keep the gift, even though she did not commit the sin demanded of her. The reason is that there was no pactum de peccato patrando.⁴ But, as Göpfert observes, “the acceptance or retention of such a present may involve the sin of scandal, namely, in so far as the donor may thereby be encouraged in his evil purpose by the hope of fulfilment.”⁵

⁴ Gury, op. cit., Vol. I, n. 731: “It is asked whether, if a man has given something to a woman in order to seduce her, she may retain the thing after refusing consent? The answer is affirmative, because no agreement concerning the commission of sin intervened, and therefore the donation is to be regarded as entirely gratuitous.” Cfr. Lehmkuhl, Theol. Mor., Vol. I, n. 1248–1251.

⁵ F. A. Göpfert, Moraltheologie, Vol. II, p. 152.—Cfr. J. Kelleher, “Immoral Contracts,” in the Irish Theol. Quarterly, Vol. IV, (1909), No. 15.

c) Formally, a contract demands a mutual, serious, and perfectly free internal consent (consensus internus,) manifested by some external sign or signs (consensus externus). Extremely vague terms, a lack of express acceptance of the promise given, or any essential error with regard to the object or nature of a contract, render that contract invalid, because in such cases there can be no true agreement of the will between the parties concerned. A non-essential error, on the other hand (e. g., concerning an accidental quality of the matter), does not affect the validity of the contract, unless the contract was caused by this very mistake. If this was the case, the contract, if it was a gratuitous one, is null and void because gratuitous contracts presuppose free consent. Grave fear, unjustly caused, so long as it does not deprive the subject of the power of clear thinking, does not, ex iure naturali, render a con- tract invalid, but gives the party who acted under the influence of fear the right to renege the obligations incurred.⁶ Force, which deprives one of the contracting parties of his liberty, renders a contract null. A signature obtained by force is, therefore, legally worthless and does not bind the signer in conscience.

⁶ J. P. Gury, S. J., Comp. Theol. Mor., Vol. I, n. 737, 740–747; J. E. Ross, Christian Ethics, p. 297; M. Cronin, The Science of Ethics, Vol. II, pp. 305 sqq.

The so-called gratuitous contracts (vide Sect. 4, infra) are not affected in their validity by a non-essential or an accidental error, for consent to its substance is sufficient to make a contract valid. Accidental errors easily occur in legal affairs, and it would give rise to numerous inconveniences if contracts were invalid or could be declared void because of a non-essential error. If, however, the error was substantial and caused by intentional deceit on the part of one of the contracting parties, and the other party was induced by it to make the contract, the deceived party has the right, upon discovery of the error, to rescind the agreement. Some authorities regard the contract as invalid in such a case. Most others consider it valid as long as the deceived party does not demand its dissolution. The latter, consequently, has it within his power either to let the contract stand, if he wishes to do so after he has discovered the error, or to have it revoked, i. e., to demand of the other party that it be regarded as null and void.⁷

⁷ V. Cathrein, S. J., Moralphilosophie, Vol. II, 5th ed., pp. 355 sq.

Slight fear⁸ does not by natural law invalidate a contract, for if it did, every contract would be doubtful, as there are people who seem to be in a constant state of dread and can be induced to make a promise or sign an agreement only if inspired by fear or placed under moral pressure. Slight fear, even if unjustly inspired, does not destroy freedom of decision. On the contrary, fear often makes a man cautious and teaches him to give special attention to the business in hand. Hence it would not be right to say that slight fear invalidates gratuitous, or even onerous contracts (the latter if fear was the principal reason for, or the occasion of, making the contract) in foro conscientiae, but such fear may be a reason for demanding the dissolution of an otherwise valid contract.

⁸ See this Handbook, Vol. I, p. 116.

3. DIVISION OF CONTRACTS.—Contracts are commonly divided as follows:

a) With regard to the effects or the obligation involved (α)—into unilateral (unilaterales) and bilateral (bilaterales), according as they give rise to an obligation of justice in one of the parties only or in both; (β) into gratuitous (gratuiti) and onerous contracts (onerosi), according as one of the contracting parties receives a utility without a corresponding burden, or the burden is distributed between both; (γ) insurance or social contracts, which aim not at profit, but at securing rights of property.⁹

⁹ F. X. Linsenmann, Lehrbuch der Moraltheologie, pp. 535 sq.

b) Distinguished according to form, contracts are divided into (α) solemn, (β) public, (γ) private, depending upon the legal formalities by which they are accompanied.

c) With reference to their object, contracts may be ecclesiastical or civil, and they may or may not affect property rights.

d) Distinguished according to the law by which they bind, contracts are divided into natural contracts and contracts of civil obligation.

Other divisions are of minor importance.

The division of contracts evolved by the casuists, says Linsenmann, does not flow from their internal nature. Some of them are merely the product of a legal fiction, which cannot be carried to its logical conclusions in the ulterior development of the law. The distinction between unilateral and bilateral contracts, for instance, is opposed to the very nature of contracts. The distinction between gratuitous and onerous contracts is purely extrinsic and not quite accurate. In Moral Theology, at least, every contract is not only bilateral, but also onerous, though the consideration involved does not always consist in a definite, material quid pro quo enforceable under the law, but at times is purely ethical and ideal. But even in regard to the material quid pro quo jurists and casuists cannot determine sharply which species of contracts naturally postulates it and which does not. It does not lie in the nature of a loan contract that it is sometimes (commodatum and mutuum) rated as gratuitous and sometimes (locatio, conductio, etc.) as onerous.¹⁰

¹⁰ Linsenmann, op. cit., p. 536.

READINGS.—Th. Meyer, S.J., Inst. Iuris Nat., Vol. II, pp. 210 sqq.—Sporer-Bierbaum, Theol. Mor., Vol. II, 2nd ed., pp. 631 sqq.—St. Alphonsus, Theol. Mor., l. III, n. 707 sqq. (ed. Gaudé, II, 174).—J. Schwane, Die theologische Lehre über die Verträge, Münster i. W., 1871, pp. 8 sqq.—J. E. Pruner, Lehre vom Recht, Vol. I, pp. 336 sqq.—F. X. Linsenmann, Lehrbuch der Moraltheol., pp. 533 sqq.—V. Cathrein, S.J., Moralphilosophie, Vol. II, 5th ed., pp. 352 sqq.—A. Vermeersch, S.J., Quaestiones de Iustitia, 2nd ed., pp. 363 sqq.—M. Cronin, The Science of Ethics, Vol. II, pp. 298 sqq.—J. E. Ross, C.S.P., Christian Ethics, pp. 294 sqq.—T. Slater, S.J., in the Catholic Encyclopedia, Vol. IV, pp. 332 sq.

Gratuitous contracts, so called, are: promises, gifts, deposits, loans, and the agreements known in Latin as mutua, for which we have no precise equivalent in English.

1. A promise (promissio) is merely a free and sincere declaration of one’s willingness to do something gratuitously for another. It is, therefore, not strictly a contract, but rather a preliminary to a contract. English law will not enforce a simple promise for which no valuable consideration was given and which was not entered into by deed,¹ but in the forum of conscience a promise imposes an obligation, either of fidelity or of justice, as the intention may be.

¹ T. Slater, S. J., A Manual of Moral Theology, Vol. I, p. 496.

“There is a dispute among theologians concerning the kind and quality of the obligation imposed by a simple promise. An onerous promise for which consideration is given by the other party, and mutual promises bind in justice, and consequently under pain of grievous sin in serious matter. Similarly, where the promisee has been led to rely on a promise, and would suffer serious loss unless the promise were fulfilled, the promisor will be under a grave obligation to fulfil it. Apart from these circumstances the obligation of a simple promise will depend on the intention of the promisor. If he intended to give the promisee a strict right to what was promised, he will be bound in justice; otherwise he will only be bound by the virtue of fidelity, which is a self-regarding virtue, and imposes an obligation to make the fact agree with one’s word. The virtue of fidelity of itself only binds under pain of venial sin. A promise will cease to bind if some event takes place or becomes known subsequently which would have prevented the promisor from making the promise if it had happened or been known beforehand. For a simple promise is essentially conditional; the promisor binds himself to do something under certain suppositions and in certain circumstances; if those suppositions are not verified, or if the circumstances become changed, the promise no longer obliges. All the more will a promise cease to bind if what was promised becomes unlawful and wrong, or useless, or impossible.”²

² Op. cit., p. 497. Cfr. M. Cronin, The Science of Ethics, Vol. II, p. 313.

2. A gift (donatio) is a contract by which a man (donator) gratuitously transfers an object or a right to another (donatarius). For a gift to be valid, the donor must be free to give away the object or right in question, and the receiver (donatarius) must be free to accept it. A gift is called inter vivos if the ownership in the property is transferred by the donor while he is still alive; it is called mortis causa if made in view of death, i. e., with the intention that the donatarius shall receive the property only after the donor’s demise.³ The difference between these two kinds of gifts lies in this, that a donatio mortis causa may be revoked at any time, and becomes void with or without a cause, if the donatarius dies before the donor, unless indeed the latter expressly ordained the contrary. A donatio inter vivos, on the contrary, can be voided only for definite reasons determined by law, e. g., if an heir is born to the donor, if the beneficiary proves grossly ungrateful, or if the donor becomes poor and needy without any fault of his.⁴ Gifts of immovable objects or movable ones of considerable value must be legally approved to be valid. Catholic Moral Theology demands of the donor that he shall not injure his family or creditors nor give his property away to unworthy persons in order to gratify his own passion or that of another; and of the beneficiary, that he shall not obtain a gift by deception, intrigue, or other undue influence, that he shall refuse to accept a donation unjustly made, and that he shall show himself duly grateful for gifts, both in word and deed.⁵ The civil law may add other conditions, for instance, that there should be some public record of the transaction.

³ J. P. Gury, S. J., Comp. Theol. Mor., Vol. I, n. 761: “A donation in general is the gratuitous grant of some thing. It can be made in two principal ways, namely, between the living and by testament.” Ibid., n. 770: “A donation between the living is an act or contract by which the donor actually and irrevocably deprives himself of some thing in favor of the accepting donee.” Ibid., n. 797: “A donation in contemplation of death is one which is made in view of death; it is necessarily revocable by its nature. This concerns the common law. A donation in contemplation of death is valid, provided it is clothed with the due conditions, namely: 1. It must be made in view of death, otherwise it would be considered a donation between the living; 2. It must be accepted before the donor’s death by the donee himself; 3. If the donee predeceases the donor, it is revoked by that very fact and does not pass to his heirs.”

⁴ Gury, ibid., I, n. 773; Göpfert, Moraltheol., Vol. I, pp. 162 sqq.

⁵ Col. III, 15; 1 Thess. V, 18; 1 Tim. II, 1; cfr. Prov. XVII, 13.—J. E. Ross, Christian Ethics, p. 300.

In most countries gifts are hedged about with many legal provisions intended, first, to exclude undue influences and, second, to prevent donations to persons and institutions which the State does not wish to be so favored. When the lawmakers really have in view the common welfare, these limitations are wholesome. There may be undue weakness shown in giving and there are always persons ready to exploit such a defect of character for their own benefit. In view of this fact the public authorities have a right to protect the weak in their property and to limit extravagance in the form of immoderate and unjust giving. Take the case of a man who disinherits his wife and children and leaves his property to a concubine. Here surely the law ought to interfere. Christian moral teaching, therefore, obliges us to respect the civil laws in this regard. No gift should be made except for some adequate reason, and the beneficiary should realize that he assumes certain obligations with the gift.⁶

⁶ Linsenmann, Moraltheol., pp. 548 sq.

3. A deposit is a contract by which a man (deponens) entrusts to another (depositarius) an object (depositum), to be guarded for him until he demands it back.⁷

⁷ Gury, Comp. Theol. Mor., Vol. I, n. 806: “A con- tract by which a thing is entrusted and accepted for safekeeping, to be restored intact whenever the depositor wishes.”

a) The depositary is bound in conscience to take reasonable care of the object entrusted to him. He is not allowed to make use of it or to appropriate its fruits; he must return the object to its lawful owner upon demand, and make restitution for any damage or injury it may have suffered ex dolo et culpâ latâ seu levi while in his care. If the object entrusted has decreased in value by accident, the depositary is not responsible for the damage, for “casum sentit dominus.” If the damage was done through his fault, the question of indemnification must be decided by the terms of the contract. If there was no definite agreement, the depositary is responsible not only for grave neglect on his own part, but also for moderate neglect, provided he receives some compensation for the custody of the object or has freely offered his services. If he has used the entrusted object without the owner’s permission, he is responsible for all damage or depreciation, even though it may have occurred accidentally. If the deposit turns out to be ill-gotten, or the depositary has a just claim against the owner, or reason to fear that the owner will abuse the object, he is not bound to give it back.⁸

⁸ St. Ambrose, De Offic., l. II, c. 29, n. 149: “Faith with respect to deposits must be kept; diligence must be employed.” (Migne, P. L., XVI, 143).—Gury, Comp. Theol. Mor., Vol. I, n. 806: “Obligations of the depositary: 1. He is bound to keep and guard the deposited thing with the care and diligence which diligent men are accustomed to employ in preserving a similar thing of their own; for he has undertaken custody of the thing handed over. If the deposited thing perishes through fraud or through his theologically culpable negligence, he is bound to restitution; 2. He may exact nothing for custody of the thing, unless the owner has expressly promised him compensation, because a pure deposit redounds to the advantage of the depositor alone. But if an agreement concerning compensation has intervened, the deposit then passes into a hiring of service, namely, for the safekeeping of the deposited thing; 3. He is forbidden to use the deposited thing without the owner’s express or tacit consent, or at least consent prudently presumed, for it is not lawful to use another’s thing without consulting the owner; 4. He is bound immediately to return the deposited thing to the person requesting it, for otherwise he would possess another’s thing against the reasonable will of its owner. Except when the depositor requests it to his own or another’s injury, or when the thing is stolen and its owner requests it, or also when the depositary has a just cause for compensation. The deposited thing must be returned in the state in which it is found at the time of restitution, together with the fruits received from it. If, however, it has deteriorated through the fault of the depositary, he is bound to repair the damage.”

When a deposited object (depositum) must be restored to its owner, depends upon the will of the latter, even in those cases where a time limit is fixed in the contract, because the nature of this sort of contract makes it necessary to interpret its provisions in favor of the owner. If the place to which the object is to be returned is determined in the contract, this stipulation should be observed by the depositary, but the depositor must pay the costs of transportation. If the depositary changes his place of residence, he is not bound to take the deposit with him, but may leave it in custody of a court, if the depositor will not send for it after being duly notified, or he may, in this latter case, take the object along with him at the expense of the owner.

b) The duties of the deponens or lender flow from the nature of the contract. He is above all obligated to receive back the deposit when the depositary wishes to return it for some good reason, for instance, because he can no longer keep it without danger to himself. When a compensation has been agreed upon between the parties, the owner need not pay it in full if the object is returned before the term agreed upon in the contract, but may make reasonable deductions, and eventually charge the depositary with the cost of entrusting the object to another. But he must indemnify the depositary for all necessary expenses incurred and for whatever damage the latter may suffer through the keeping, preservation, or rescue of the deposit, and likewise for accidental damage. In case of danger the depositary may save his own property first.

c) A special kind of deposit is sequestration, which is defined as the deposit of property made with a third person either by agreement (sequestrum conventionale) or by judicial order (s. iudiciarium), by parties having claims against such property, till the question of ownership can be decided. The person with whom such property is deposited is called sequester, umpire, or referee. Sequestration is an act of public administration. If sequestration is the result of a mutual agreement between the parties concerned, it may be either gratuitous or not; in the last-mentioned case, the consideration to be paid the sequester should be determined by the terms of the contract. If it is gratuitous, it is subject to the same rules as a deposit and is not rescinded except by mutual consent of the parties or by a legal action. In judicial sequestration the referee or umpire is bound to take good care of the property entrusted to him and the claimants must pay him the fee fixed by law.⁹

⁹ Gury, Comp. Theol. Mor., Vol. I, n. 807: “Sequestration is a species of deposit by which a disputed thing is deposited with a third party, so that after the judgment of a judge or arbitrator it may be handed over to the victor. A twofold sequestration is distinguished: conventional, which is made by the mutual agreement of the contending parties, and judicial, which is decreed by the judgment of a judge. It will suffice to indicate the following concerning both: 1. The object of both conventional and judicial sequestration can be movable or immovable property; 2. Conventional sequestration can be non-gratuitous, and then it is a hiring of service and is subject to the laws of that contract. But if it is gratuitous, it is subject to the same rules as a deposit. It is not dissolved, however, unless mutual consent of the parties or a legal cause supervenes; 3. In judicial sequestration the custodian must exercise the care of a good head of a household, while the person committing the thing to custody is bound to pay the depositary the compensation established by law. Thus concerning natural and positive law.”

Deposits now-a-days are mostly entrusted to banks. If a deposit consists of stocks or bonds or other valuable papers, the bank is per se not allowed to sell them or use them as collateral, particularly when there is danger that the owner may sustain losses through such action. Deposited money may, however, be loaned out or invested with due precautions, provided the owner is given adequate guarantees that he can withdraw his funds within a reasonable time after giving notice.

If a deposit is in danger, and the same danger threatens the depositary’s own property, the latter may rescue his own property first. If the deposit is much more valuable than one’s own property, it must be rescued first and indemnification can be claimed for one’s own loss. If however, the terms of the contract favor the depositary, he must rescue the property of the owner without claim to indemnification.

The same rule applies to loan contracts, with this modification that the terms of such contracts are always supposed to favor the borrower, who therefore has a greater responsibility.¹⁰

¹⁰ Göpfert, Moraltheologie, Vol. II, p. 166.—Cfr. St. Alphonsus, Theol. Mor., l. III, n. 752 (ed. Gaudé, II, 200).

A somewhat different sort of contract is that entered into by a guest who entrusts his valuables to a hotel or innkeeper. In most countries the civil law obliges the hotel keeper to take good care of the valuables entrusted to him and compels him to make restitution even in some cases where the natural law does not impose this obligation.¹¹

¹¹ J. Schwane, Die theol. Lehre über die Verträge, p. 79; V. Cathrein, S. J., Moralphilosophie, Vol. II, 4th ed., p. 348.

4. A loan (commodatum) is a contract by which something is granted to another for his temporary use, on condition that it be restored to the owner in its integrity after the term specified.

If the contract contains a clause stipulating that the object loaned may be demanded back by the owner at any time, it is called precarium.

In making a contract of this kind the lender (commodans) must reveal the defects of the object or commodity loaned; he is not allowed to shorten the term of the contract arbitrarily, and must defray extraordinary expenses and losses caused by accidents.

The person to whom a commodity is loaned for use only, not for consumption, is called commodatarius. He is in duty bound to take good care of the commodity; he may not use it in a manner opposed to the terms of the contract; he has no right to lend it to others, and is responsible for the loss occasioned by its use or preservation, for instance, the feed of a horse or cow; he must further repair all damage arising to the object entrusted to him through his own fault, even though his fault be of the slightest (ex culpa levissima).¹²

¹² Gury, Comp. Theol. Mor., Vol. I, n. 803: “A loan for use is a contract by which a thing is granted gratuitously for use alone for a fixed time, with the obligation of restoring the same thing in its individual form. A precarium, which is akin to a loan for use, is defined as: A contract by which the use of some thing, revocable at the grantor’s will, is granted to someone requesting it. A precarium differs, however, from a loan for use in that it is revocable at the grantor’s discretion.”—Cfr. Schwane, op. cit., pp. 79 sqq.; Göpfert, Vol. II, p. 165.

Lending to others an object which we expect to have restored to us in kind, is a practice which gives rise to much dissatisfaction and quarrelling, and therefore it is undoubtedly an indication of economic progress that objects which used to be loaned gratuitously are now sold or rented at a reasonable price. In trying to abolish the loan in favor of the lease or sales contract, says Bishop Linsenmann, we no more mean to discourage acts of charity than when we advocate the practice of furnishing the poor with occasions for work rather than doling out alms to them. Lending in the sense of the Scholastic commodatum will perhaps never die out as a form of friendship and good nature among neighbors; as a social function in the strict sense it no longer has importance except in the form practiced by public institutions, e. g., libraries, art collections, etc. Here, too, the original character of the contract as a kind of charity is almost completely obliterated. There is nothing in the nature of the loan contract which would prevent charging a fee for the use of books in a public library, nor is there anything unreasonable in the demand that the lender be held responsible for damage done by accident or by force majeure, to articles loaned to him, provided, of course, he is aware of his liability.¹³

¹³ Linsenmann, Lehrbuch der Moraltheol., pp. 551 sq.

5. We now come to the contract that was called mutuum in Roman and Canon Law. It was a gratuitous loan of a fungible commodity made on condition that after a certain period of time the borrower (mutuatarius, debitor) should restore to the lender (mutuans sive mutuator vel creditor) an equal quantity of the commodity and of the same quality. A fungible commodity is one intended for immediate consumption, e. g., food and drink. Such commodities are called fungible (res fungibiles sive primo usu consumptibiles) because any amount of them is interchangeable with the same quantity and quality of the same commodity (mutuâ vice funguntur). Since use and consumption cannot be separated in such commodities, that is to say, since the commodity loaned is a res infructuosa or sterile, no more can justly be exacted in return than was originally lent.¹⁴

¹⁴ T. Slater, S. J., Manual of Moral Theology, Vol. I, p. 512;—J. E. Ross, C. S. P., Christian Ethics, p. 303.—J. P. Gury, op. cit., Vol. I, n. 810: "A loan for consumption is a contract by which a thing consumable by its first use is handed over to another under the obligation of returning at the appointed time a similar thing of the same kind and quality. Hence a loan for consumption differs from a loan for use, hire, and deposit: 1. Because in a loan for consumption the thing must be consumable by its first use, whereas not so in the others; 2. Because it must be returned not as the same individual thing, but only as the same in kind; 3. Because in a loan for consumption ownership of the thing is transferred, but not in the others; 4. Because in a loan for consumption the thing perishes to the receiver, in the others to the giver."

"Money considered as a medium of exchange is a fungible; it is a commodity whose use is exhausted for the owner of it when he has paid it in exchange for value received. It is not, under this respect, a commodity which is susceptible of repeated use by the same owner. Money then may be the matter of a contract of loan for consumption, and if a sum of money be thus lent, justice requires that an equal sum be returned at the end of the term, and justice will not allow a greater sum to be exacted in return. For the whole value of the sum of money is the value it has for making exchanges, the value which it has in the first expenditure of it; and if, over and above the sum lent, a further sum were demanded for the use of the money, the same thing would be charged for twice over. An equal sum is due in return for the use of the money; a further sum would be a second payment for the same use. Thus when money is regarded merely as a medium of exchange, a sin against justice is committed if an additional sum is exacted for a loan; it is called usury, money unduly exacted for the use of money. This is the reasoning of Aquinas,¹⁵ and it seems as cogent to-day as it was in the thirteenth century." ¹⁶ By this argument St. Thomas defended the doctrine concerning usury which the Fathers and Doctors had drawn from Holy Scripture and tradition. Benedict XIV sums up the constant teaching of the Church on usury as follows: "The species of sin which is called usury, and which has its proper seat and place in the contract called mutuum, consists in this that, from a loan made for consumption (which of its own nature requires that only so much should be returned as was received), the lender desires more to be returned to him than was received, and therefore contends that some gain, over and above the principal, is due him merely on account of the loan. ... Every sort of gain of this kind, therefore, which exceeds the loan, is illicit and usurious.¹⁷ " 17 It can be shown, however, that money is no longer a mere means of exchange for articles of consumption and a measure of their value, but by its very nature has become a res fructuosa, i. e., a thing which, over and above its consumptive value has a use value which may be considered as its fruit (fructus rei), and hence a loan is no longer strictly a contract of the kind known as mutuum, and interest may be asked and taken for its use. Of this subject we shall treat more in detail in the next section, pp. 297 sqq.

¹⁵ Summa Theol., 2a 2ae, qu. 78, art. 1; cfr. Lehmkuhl, Theol. Mor., Vol. I, 11th ed., n. 1295 sqq.

¹⁶ Slater, A Manual of Moral Theol., I, 514 sq.—Cfr. Conc. Vienn. a. 1311: "If anyone should fall into that error, so that he presumes obstinately to affirm that the practice of usury is not a sin, we decree that he is to be punished as a heretic." (Denzinger-Bannwart, n. 479). Conc. Lat. V: "That is the proper interpretation of usury when, namely, gain and profit are sought from the use of a thing which does not reproduce, with no labor, no expense, and no risk." (Ibid., n. 623).—Prop. damn. ab Alex. VII, n. 42: "It is lawful for the lender to exact something beyond the principal, if he binds himself not to demand repayment of the principal until a certain time." (Ibid., n. 1143).—Prop. damn. sub Innocentio XI, n. 41: "Since ready money is more valuable than money to be paid, and there is no one who does not value present money more highly than future money, a creditor may exact from a borrower something beyond the principal and on that title be excused from usury."—Ibid., n. 42: "There is no usury when something beyond the principal is exacted as being due by reason of benevolence and gratitude, but only if it is exacted as being due by reason of justice." (Denzinger-Bannwart, nn. 1191 sq.)

¹⁷ Benedict XIV, Encyclical Vix pervenit to the bishops of Italy concerning usury, dated 1 Nov. 1745, n. 1: "That kind of sin which is called usury and which has its proper seat and place in the contract of loan for consumption consists in this: that someone, from the loan itself (which by its own nature requires that only as much be returned as was received), wishes more to be returned to him than was received, and therefore contends that some gain beyond the principal is owed to him by reason of the loan itself. Consequently every gain of this kind which exceeds the principal is illicit and usurious." (Ibid., n. 1475; cfr. S. Alph., Theol. Mor., l. IV, n. 758 sqq.)

READINGS.—Sporer-Bierbaum, Theol. Mor., Vol. II, 2nd ed., pp. 639 sqq.—St. Alphonsus, Theol. Mor., l. III, n. 720 sqq. (ed. Gaudé, II, 185).—J. Schwane, Die theol. Lehre über die Verträge, Münster i. W., 1871, pp. 56 sqq.—J. E. Pruner, Lehre vom Recht, Vol. I, pp. 420 sqq.—F. X. Linsenmann, Lehrbuch der Moraltheologie, pp. 547 sqq.—V. Cathrein, S. J., Moralphilosophie, Vol. II, 5th ed., pp. 358 sqq.—A. Lehmkuhl, S. J., Theol. Mor., Vol. I, 11th ed., n. 1285 sqq.—M. Cronin, The Science of Ethics, pp.

328 sqq.—J. E. Ross, C. S. P., Christian Ethics, pp. 302 sqq.

What a Contract Is. A contract is the consent of two or more persons in the same juridical agreement (cf. l. 1. Huius § 2. l. De pactis, II, 14). - Many things to be said concerning contracts are valid concerning a quasi-contract, which is an honest fact, existing by authority of law or by the voluntary will of someone, which produces a certain obligation of justice. Such is the management of affairs.

A contract can be considered in fieri, or in its constitution, and in facto esse, or in the permanent juridical effect which it produces.

How Manifold It Is. A contract is divided under various respects. 1. From the intention of the contracting parties, or the end of those operating, contracts are gratuitous or onerous, according as the stipulation is made from an intention of benefiting the other party, as for example in donation, or the utility of both is intended. A mixed contract is one in which only a partial price is demanded; but it remains gratuitous if it is annexed to donation. Analogically onerous is that on the occasion of which something must be paid under another title, for example of support. - An onerous contract is commutative, if what must be furnished is certain from the beginning; it is aleatory, if this depends on an unknown or uncertain event, for example in insurance.

2. From the end of the work, every contract changes rights: but some contracts immediately change real rights, as, in our law, donation; others beget a personal right, insofar as they generate an obligation of justice. Yet observe that it is not admitted by every law that a real right is transferred by consent alone; and that for the most part, in order that a juridical change affect persons extraneous to the agreement, a certain inscription in a register or tablets is required, or another solemnity is commanded, whereby knowledge of the matter can be had by those whose interest it is.

Moreover, an obligation of justice is distinguished from an obligation of fidelity. In this latter, mere faith is interposed; and its obligation is light in kind. In the former, a right is granted, which of itself is grave. An obligation of fidelity does not pass to heirs, unless the one promising wished efficaciously to impose on them the burden of a real promise, while an obligation of justice affects the patrimony. (Cf. Quaestiones de iustitia, n. 290.)

3. From effect or efficacy: a) Some, if substance or stability is attended to, are in general valid, firm, or in various degree infirm, invalid: which are either plainly non-existent and lacking the very figure of a contract, as a civil marriage without an official and witnesses; or are simply null, which are invalidated by sentence of the judge. More properly, those are called rescindable which, because of lesion, or excessive detriment of one party, can be invalidated.

b) Others, as regards the effect of obligation, are unilateral or bilateral (synallagmatic), according as an obligation is imposed immediately on only one party or on each party. A unilateral contract can be onerous: thus a loan for consumption with a stipulation of interest.

c) There are also, if juridical efficacy is attended to, naked or clothed contracts, according as they produce only an obligation of conscience or also a civil action. Naked contracts are not always devoid of every civil effect: for example, it can happen that what has been paid from a naked agreement cannot be sought back.

4. By reason of form, some are consensual, which are perfected by consent alone; others real, which have their beginning from the handing over of the thing (pledge). - Some are solemn and simple, according as positive law has imposed certain forms to be observed or not. Most today are simple. - They are express or tacit. Thus, from the fact that an accused man approaches an advocate who undertakes his cause, a tacit contract is had between them.

5. By reason of appellation, they are named, which have a special name, or unnamed, such as the four real contracts (which are called regular): I give that you may give; - I give that you may do; - I do that you may give; - I do that you may do.

6. By reason of subsistence, they are principal, which stand by themselves, or accessory, which accede to another principal contract: pledge, hypothec.

— 1. The constitutive elements of a contract are distinguished as essential, natural, accidental. Essential elements cannot be excluded without the contract becoming null or another contract. Thus, if the price is suppressed, sale becomes donation. - Natural elements, as it were of themselves, accompany the contract, so that unless they are positively excluded, they are considered, from law or custom, to be contained in the contract by the tacit consent of the parties: thus, in purchase-sale, the guarantee against eviction, in favor of the buyer. - Accidental elements are not included in the contract unless they have been agreed upon in express words. Thus a day given so that the buyer may more easily pay the price.

2. The essence of a contract is always composed of the thing or matter, by which is designated the remote or proximate object about which the agreement turns: a horse, a horse to be sold; and of consent, or the conspiring of the wills of persons who are capable by law. Conspiring supposes wills of the parties which agree concerning a substantially identical thing. Must cause besides be added? This today is rather much disputed and is denied by many jurists. By the name of cause there are by no means designated the various reasons which could have led each party to consent; but there is understood the proximate motive which, proper to each contract and therefore always the same, enters into the agreement itself. In gratuitous contracts, the cause will be the intention of beneficence; but here, in moral estimation, the subjective motive itself by which the intention has arisen will have to be considered. In onerous exchanges, one party does, gives, promises, on account of the performance or promise of the other: the seller yields the thing on account of the promise of the price; the buyer promises or pays money on account of the promised or accomplished handing over of the thing. Some defend the utility of distinguishing cause from object, for cause is essentially required to be licit, and it can turn upon an illicit object. Thus a delict is an illicit object; reparation of the delict makes a licit cause. Others think the distinction useless, for cause is confused with the proximate object.

I. Concerning the Object of a Contract. The object of a contract, if it is a thing, must exist at least in hope; under the respect under which it is considered, it must not be outside commerce; and it must be estimable by price: such is not a simple showing of the way made by anyone, nor anything which is already owed from justice. But nothing prevents you from receiving a price for an obligation undertaken, although by accident, on account of a similar obligation already undertaken, you fulfill it without new inconvenience: thus a messenger who, on account of another cause already present, must go to a certain city, can of himself demand solid compensation for making the journey. - If a contract is made concerning an action, this must be possible, physically and morally; useful to him for whose sake it is done; honest. Indeed, moved by their liberal prejudices, many jurists of France and Belgium have denied that a contract can be made concerning an object of the moral order, but say that it is required that the stipulator, at least from a penal clause or from an added stipulation for his own advantage, of which the other is made accessory, perceive an economic or pecuniary utility. That opinion is founded neither on the text of the Code nor on the authority of tribunals. Wherefore effort must be made that that prejudice be abolished. Cf. Colin and Capitant, II, p. 293, 1.

If the thing exists only in part, or the action has been possible only in part, it will have to be estimated from the nature of the thing and the intention of the parties whether partial performance is to be made or not.

Thing and action ought of themselves to be proper to the one promising. Yet someone can promise another's deed; nor does anything prevent that, by selling another's thing, someone immediately oblige himself first to acquire the same thing for himself. This frequently happens in commercial business.

Jurists also deny that a stipulation in favor of a third person will be civilly efficacious, unless, for example from an added penal clause, you have created for yourself some economic utility. For otherwise the right could be urged by no one: not by the contracting party, since it does not interest him; not by the third person, to whom nothing has been promised.

Certain objects are excluded by various laws. Thus liberty cannot today be alienated indefinitely (art. 1780, French Code); public functions, and not rarely a future inheritance, cannot be objects of contract (art. 1600 F.C.).

What forensic usages bear concerning objects of a higher order must be carefully attended to; as for example, concerning the religion in which children are to be educated; concerning religious or merely civil funerals; concerning cremation, etc.

II. Concerning the Cause of a Contract. This must be true and licit. By positive law many causes are prohibited which are opposed to the law of nature. A contract of base cause is void both by the law of nature and by positive law. Yet once the base deed has been fulfilled, the indifferent price which is paid can be retained, indeed, according to the common opinion, can be demanded. But it must be seen whether by positive law a condictio (i.e., a personal action) for what is not owed is granted. By the Code of Germany, art. 817, it is denied.

It also happens that, because of a certain reason of the common good, the legislator sanctions the transfer of a right, with consideration of cause neglected. To this kind can be referred the disposition of art. 707 of the Italian Code, 2279 of the French Code. They are called in German Abstrakte Rechtsgeschafte.

— It can be asked whether or not a cause which of itself does not appear must be expressed in the contract. Is it, for example, enough that someone promise the payment of money, or must he besides indicate the cause of the debt? Art. 1192 of the French Code does not require the expression of cause. But practically, at least in the law of Belgium and France, beware lest the debtor sign merely by name a document in which his debt is stated, but let him acknowledge the debt in at least a few words written by his own hand. Let him write, for example: "Good for 1000, owed by me" (Bon pour 1000. dus par moi). Otherwise juridical proof may be lacking.

1. Notions. In the matter of contracts, it is necessary to distinguish parties, third persons, author, successor, or one having the right, one having the cause. Parties are the contracting parties themselves, who by themselves or through representatives effect the agreement itself; and the one offering or promising is called the promisor, the stipulator, the one who acquires the promise or the right. Third persons are those who are extraneous to the juridical business. The one who gives origin to someone's right is the author (thus a testator, a seller); the one who succeeds in the right is the successor, or also the one having the right, having the cause. (In French, he concerning whose inheritance there is question is often called, as a substantive, le de cuius.) Frequent, also for conscience, is the use of the principle concerning a thing done between others, by which the effects of agreements are circumscribed to the parties and cannot bring prejudice to third persons. Yet successors in the patrimony receive that patrimony burdened with all its burdens; and a right which someone has from another cannot be received except such as it existed with the author, therefore affected by the same qualities and defects.

2. In order that a contract be valid, the contracting parties must be capable. By the law of nature every physical person, and also every moral person legitimately constituted, is capable so that he may contract by himself or through others (Cf. Slater, A manual, etc., I, 486).

One who enjoys the use of reason is capable of contracting by himself.

But with moral persons omitted, concerning whom different laws establish things differently, by modern laws physical persons are capable, except those who are affected by legal incapacity. By such incapacity there have customarily been protected minors by age, persons of infirm mind and spendthrifts, and, in still many laws, also wives. Acts which they perform are sometimes declared null, with relative nullity concerning which only the incapable person and those who represent him can act; sometimes they are merely rescindable because of lesion. Various laws must be consulted. In the forum of conscience, the persons protected can use these laws. Yet if they have acted deceitfully in the contract itself, it indeed does not therefore oblige them more than is established by positive law, but they will be held for damages. Thus a minor who sincerely, or with the intention of returning it, has received money as a loan, and then dissipates it prodigally, is held to nothing by either law, civil or natural. But if he contracts fictitiously, with the intention of dissipating and not returning, he will have at least a natural obligation of restitution.

Nevertheless, that by which an incapable person has been made richer from the contract which is invalidated must always be restored. Finally, not rarely today the capacity of a minor by age is increased by special laws which favor deposits in public savings banks.

While the law protects a minor against his weakness, it by no means thinks of rendering him immune from the effects of his delicts.

Besides general incapacities, special ones are established for restraining abuses, by which, for example, physicians can validly receive nothing, by gift or testament, during that illness, from a non-consanguineous sick person whom they cared for in his last illness.

2. Minors by Age from Positive Law. I. Norms rather common. From rights which regard things, personal rights must first of all be separated. For in various laws, personal rights find and also make an adult minor more capable. They find him, for example, capable of validly contracting marriage, of acknowledging illegitimate offspring (which the Code of Holland (337) always grants to the mother, to the father if he is 19 years old); they make him capable: for, at least with the assent of those who must consent to the marriage, capacity for nuptials will bring with it capacity for making nuptial pacts, at least where those pacts cannot be celebrated except before the nuptials; and most laws admit emancipation by marriage.

In the order of things itself, a minor is often more capable of making a testament than of contracting.

In the present place, however, there is question only of the capacity of contracting. These things, then, are almost common to positive laws.

1. As long as minors by age are not at least emancipated, they themselves generally cannot firmly contract obligations: but, with the cautions prescribed for graver acts observed, either parents or tutors act for them. Yet some laws permit them contracts by which they receive goods without obligations; they also permit them to deposit their own money as if adults in a public savings bank, and they establish the mode by which they can lease their labor.

2. After they have been emancipated, in graver acts a curator must be present for them, or in a similar way care is taken lest in these things they act imprudently.

3. The nullity of agreements which an incapable minor has made is not absolute but relative, insofar as it can be opposed by the minor or by him who represents the minor, but not by the other contracting party.

4. Because the legislator intends to protect minor age, not to patronize frauds, a minor who has deceitfully feigned himself older by age either is held for damages or can no longer allege age for the nullity of the contract. But what is required that that deceit be had juridically is defined differently by different laws.

5. Ratification by which an infirm act is healed is generally admitted by law, but only from the time when the contracting party has become an adult.

II. Certain things proper to some laws. 1. In Latin law, the incapacity by which minors by age are protected coheres with paternal power, insofar as those who exercise paternal power act for minors or with minors, and insofar as that representation directly affects only legitimate or legitimated children. Yet by legal tutelage, which confers a similar paternal power, even natural children are protected.

By the Austrian Code, there are distinguished infants, who have not yet completed seven years; impuberes, who have not yet completed fourteen years; pubescent minors, who have not yet completed twenty-four years. Yet free disposition concerning the fruits of one's own industry is permitted to a minor who is not nourished by parents; but one twenty years old can obtain from the judge a declaration of majority (252) and free administration of revenues which exceed annual expenses. Moreover, the leasing of labor made by a minor cannot be invalidated by a tutor without a grave reason. - By the Codes of Austria (241), Switzerland (19), minors can acquire goods without obligation. By the Brazilian Code (5, 6) absolute incapacity is sanctioned, without exception for deceit, until the age of sixteen years: afterward it becomes relative. - From the Code of Holland, a minor eighteen years old can obtain partial emancipation from the judge, if the parents are not unwilling (480-485); he alone deposits money in a public savings bank; with the consent of the one by whom he is represented, he is permitted to lease his labor. It is proper to the Code of Spain that even contracts made by a tutor, within the scope of his power, can be rescinded because of lesion or damage which exceeds the fourth part of the value of the object.

By Italian law an action of nullity is prescribed in five years (after majority). Acts clothed with the due solemnities are firm no less than acts of one older by age.

The Latin laws agree in sum, except that for the most part the prescription of the action is reduced to four years. Yet the Code of Portugal has preserved prescription of five years. - Besides, the Code of Spain gives an action by which acts themselves made by a tutor, within the limits of his power, nevertheless can be rescinded because of lesion (or damage) which exceeds the fourth part of the value of the object.

A less simple regime has been introduced by the Code of France (and of Belgium), whereby some acts are merely rescindable, while others are invalidated by relative nullity. a) A contract, whatever one the minor has made, can be rescinded if it has been even a little injurious: provided the damage has flowed not from a fortuitous event but from the agreement itself. Therefore this is valid: the minor is restored not as a minor, but as one injured. b) But if he has made acts which the tutor himself could not make alone, or if he alone has received payment of a debt, those acts are null with relative nullity. - Concerning an emancipated minor, there must be distinguished: a) acts which he can make alone: they are firm, yet in such a way that if they oblige him to excessive expenses, they can be reduced by the judge to just terms; b) acts which he could but had to make with the assistance of the curator: they are rescindable because of lesion; c) acts which were besides subject to other solemnities: they are affected by relative nullity. - Actions concerning nullity and rescindability are prescribed in ten years from majority.

2. By the law of the German Code, a minor, even alone, can make acts which merely profit him without burden: but acts which can be damaging to him he cannot make firmly without the authority of the one who represents him, or also, sometimes, of the tribunal of tutelages. These can ratify such acts. But unless ratification has intervened within two weeks, the acts are null. Acts, however, which are made with the due solemnities are firm, as if made by one older by age.

3. By English law, a minor can make certain contracts profitable to himself or reasonable and congruent with his state or condition. Other contracts, however, are absolutely null and cannot be ratified. But a minor never obtains the benefit of fraud.

4. In the U.S.A., the principle formerly admitted, by which all acts of minors were null or subject to annulment, is reasonably tempered. Nothing more definite seems able to be said.

3. Wives from Positive Law. I. More general indications. A greater variety of laws is perceived here. For some laws admit no incapacity of contracting proper to the wife; others, merely for firming the authority of the husband, require his assistance; while others intended also to provide for the weakness of the weaker sex. But a judge can generally supply the denied license of the husband. Moreover, the inclination of modern laws is toward restoring general capacity. Indeed, certain laws have begun to acknowledge the wife's right of managing the family business, imputing expenses to the common goods. But a wife who is permitted to exercise a separate art or business has already long enjoyed full capacity in these matters. Modern laws also are accustomed now to make the wife capable of administering the moneys which they have entrusted to public savings banks. The nullity of contracts, however, can sometimes be opposed by only the other spouse, sometimes by the husband and his heirs, sometimes by the wife, indeed also by her heirs. By permitting this to the wife herself, the legislator demonstrates the intention of protecting her infirmity.

II. Things proper to various laws. 1. Latin law. Neither in Austria, nor in Switzerland ¹, nor in the republic of Costa Rica is a special incapacity of the wife sanctioned. Moreover, by the recent law of 17 July 1919 it was suppressed in Italy.

By the Swiss Code, not only the husband, but also the wife, for daily expenses, represents the community (168). But by the Brazilian Code, whatever the nuptial pacts may have been, the husband cannot make graver acts concerning the goods of the wife without her assent; indeed he needs her consent in order to make notable donations from the common goods (285). Again, however, the wife also needs the general or special license of the husband for acts which touch her own goods (242). The nullity of an act unduly made without the husband's consent can be opposed by the husband (252); but an act which the husband has unduly made without the wife's consent, the wife and also her heirs can impugn (239).

Nevertheless, among most Latin nations, a certain incapacity continues to subsist: thus in Spain, Holland, Portugal, Romania.

In France the severity of the Civil Code has been tempered by more recent laws: for example, by the law of 13 July 1907, completed by the law of 8 June 1923, the wife is permitted to manage freely the gains and goods which she has obtained in exercising a profession distinct from the husband's profession; - by the law of 12 March 1920 she can freely enroll in a syndicate; she can have and administer deposits in a savings bank; and she obtains full capacity when separation of bed has been obtained.

Even with these things omitted, except for the capacity which she draws from nuptial pacts according to the various regime of goods, she needs the authority of the husband for contracting. And the license must be special and of itself written, unless there is question of exercising a profession or of acts which are not customarily written.

The license of a husband who refuses to consent or who is incapable can be supplied by a tribunal.

Acts made without the due license are vitiated by relative nullity, which the husband, the wife, and the heirs of each can use within ten years (art. 225). Acceptance of a donation is absolutely null.

2. The Code of Germany establishes no incapacity of the wife. Yet the husband can seek rescission of an obligation which demands the wife's personal labor.

3. By the law of England and the U.S.A., the wife long labored under absolute incapacity. But by the Act of 18 Aug. 1882, she was made fully capable; and even in the U.S.A. incapacity has been so suppressed that she can make all contracts not expressly excluded by statute.

¹ Yet she needs the consent of the husband in order that she may renounce an inheritance.

The Necessity of Consent. 1. A contract, which must be well noted, denotes a voluntary exchange of rights; moreover, no one unwillingly acquires a right, at least definitively, while the one offering wishes to transfer some right, not simply to lose it. Wherefore true internal consent is required, and mutual consent, so that what one offers, that very thing the other expressly or tacitly accepts. For in favorable matters the proverb easily obtains: "he who is silent seems to consent." In order that consent be mutual, it is necessary that both wills be formally joined, and therefore that the one offering intimate his will to the other, either by himself or through a procurator.

2. This consent is not impeded by the will not to fulfill the obligation; but it is impeded by the will not to bind oneself. But if the negation has been partial, i.e. if someone rejects, from among several obligations of the contract, some one which he did not know to be conjoined, the prevailing will must be investigated, and according to it judgment must be made concerning the matter.

3. Positive laws sometimes require that consent be expressed in a certain form, either for the very value of the act, or so that the contract can be proved. In the former case there is had a solemn contract, such as marriage is in ecclesiastical law; such as, in civil law, are nuptial pacts and a testament. In the other case the agreement is valid, but cannot be juridically demonstrated. Thus no agreement concerning a thing which exceeds 500 lire in value can be proved by witnesses, according to the Italian Code, art. 1341.

Concerning the Beginning of the Obligation. A twofold question is moved here.

1. Can, and for how long can, either the one promising or proposing a contract efficaciously revoke the promise, or the one accepting revoke the acceptance?

The question is scarcely practical when a consensual contract is made between those present; and such also is judged to be the case when the parties make an agreement by telephone. For a response is at the same time given and intimated by one present, and when the response has been given immediately the contract is perfected. But unless it is given immediately, the one promising can retract his consent; nor is that retraction judged harmful to the other.

But when an agreement is carried on between absent parties, by letters, by telegram, by messenger, the matter, because of the damage which retraction can bring to the party who was ignorant of it or did not fear it, becomes less clear; and even among jurists themselves it is controverted, when positive law does not explicitly define the matter.

The classical doctrine, received for a long time, alleged the very essential nature of a contract in order to permit to the one promising revocation before the acceptance of the other, unless he had manifested a different intention of binding himself, and this had been accepted by the other party. Thus still Pacifici-Mazzoni, op. cit., IV, § 47, who nevertheless bind the one retracting to pay damages, if the one accepting the promise, whose revocation he was ignorant of, had thereby been injured.

Today, however, not a few contend that the one promising, at least implicitly (unless he expressly says otherwise), by the promise itself, is obliged to await a response given in due time. This, unless a day is fixed, must be given immediately between those present, but among absent parties during the time of normal expectation. (Cf. Colin and Capitant, op. c., II, p. 270 ff.). Observe, however, that a promise is not reputed perfect before it has reached the other party, so that by a telegram which arrives sooner, or even with letters which arrive at the same time as others containing the promise, the promise can be made null or be revoked.

Many also in the same way permit to the one accepting that, before the message has arrived, he may efficaciously revoke the acceptance. Otherwise one must say, of itself, if the contract is judged perfect from the acceptance once dispatched.

When absent parties make an agreement, the Austrian Code, § 862, saving an express stipulation, obliges the one promising to await within 24 hours the response of the other party who is in the same place; but if he is in a different place, for twice the time necessary for sending the response. But the Brazilian Code (1081-1086); the German (130 and 145); the Swiss (C. obl. 3-10) explicitly sanction the opinion which we were calling modern.

2. From what moment is a contract judged perfected?. Does it suffice for the perfection of the contract that acceptance has been made, or is it further required that it become known to the one promising; indeed, that it be suggested or intimated to him by the one accepting or by a mandatary?

I. That merely internal acceptance does not suffice is clear of itself, since merely internal consent cannot change juridical relations of men.

But, from the law of nature, from acceptance expressly or tacitly manifested (which, among absent parties, can be understood of acceptance dispatched, e.g. through the postal service), a contract is of itself perfected. (Concerning this matter, Carriere, De Contractibus, I, 31-34.) Of itself, I say; for the parties can defer the mutual obligation, e.g. until they have signed the instrument. They will rather easily have this will if from the beginning they wished to write the contract. Wherefore the Code of Germany, art. 154, declares that in doubt parties who have agreed about drawing up an instrument are not bound before the instrument has been made.

II. What Positive Laws Establish. 1. In Latin law, at least of Italy and France, controversies are not lacking which ought to make a theologian cautious in responding. Nor do the laws themselves agree. Omitting, however, certain contracts for which, as for donation, in French law the intimation of acceptance is explicitly required, they are accustomed to distinguish unilateral agreements, which are perfected by acceptance (Pacifici-Mazzoni, IV, p. 161), and bilateral agreements, which are not judged perfected until the very intimation of acceptance has reached the one promising. In this matter they adhere to the opinion of C. de Lugo, Iust., d. 22, n. 27. The Code of Spain, art. 1262, explicitly establishes this. But one must also attend to commercial laws and usages, which are accustomed to order a more expeditious conclusion of transactions. By the Brazilian Code, a contract is perfected from the acceptance once dispatched; nevertheless a retraction is useful which arrives at least together with the acceptance (1086).

2. German law agrees with Brazilian law (130, 151); yet it explicitly excepts the case if there was a usage of notifying the acceptance.

3. By English law the signification of acceptance is judged necessary for perfecting the contract. Yet if the one offering has expressly or tacitly admitted that the other may accept through letters committed to the postal service, that service is considered as the mandatary of the one offering, so that from the moment at which the letters of the one accepting have been handed over to it, the contract is perfected; nor does delay of dispatch or loss of the letters affect the condition of the agreement. - 4. The same holds in the U.S.A., but one who offers orally is not judged to have given such a mandate to the postal service. Wherefore, then, the contract will be perfected only from the moment at which the written response has arrived.

A real contract, however (loan for consumption, loan for use, pledge, etc.), has its beginning from the thing handed over or the performance made. But even before this the promises of making a loan, etc., will be valid, if they are contained in a true agreement.

What Does Supervening Death or Incapacity Effect?. If either the one offering or he to whom the contract has been proposed, before acceptance, either dies or becomes incapable, what is the law concerning the heirs or concerning those who represent the incapable person?

From the law of nature, the heirs of the one offering, no less than the one offering himself, can revoke the proposed contract. But what they have done expressly or tacitly must be examined. From the intention also of the one offering one must estimate whether the heirs of him to whom the matter had been proposed can perfect the contract by their acceptance, or whether the transaction must be wholly begun anew.

The canonical Code establishes nothing expressly concerning the matter. Therefore we are sent back to the law of nature and, according to c. 1529, to the civil law in force in the region where the question arises. Civil positive laws which deny that an obligation flows from the promise itself, as such, will generally establish that the transaction is ended by the death or incapacity of either party: thus Pacifici-Mazzoni, IV, p. 160, respond concerning Italian law; while by the Code of Germany, acceptance is not impeded of itself by the death or intervening incapacity of the one offering (i.e. unless a contrary will of the one promising is demonstrated).

Corollaries for Conscience.

1. Credence will have to be given to the party who wishes to use a positive law by which retraction is permitted or denied. Cf. also Ball.-Palm., Op. theol., III, 639.

2. He who by letters offers something, even by a gratuitous title, if he explicitly or implicitly awaits a response, is not judged to have wished to oblige himself before it is certain to him concerning the acceptance (Ball.-Palm., III, 638).

3. Since a contract is of itself an act concluded between the parties, if either party, unfaithful, contracts with a third party, he will be able to use a positive law which confirms the later agreement.

4. Goods which are publicly available for sale in shops are judged to be perpetually offered for the price indicated there. Wherefore a buyer entering the shop has a right that the goods be handed over to him for the proposed price.

It is not so certain that the same must be said about notices by which books or instruments are offered for a definite price, so that a contrary notice would not be sent usefully except before acceptance. Therefore in these matters one must act cautiously.

5. Although certain authors, especially before the Code, said that promises or donations made to a Church or to a pious cause were valid before acceptance, the contrary opinion, already before the Code, was more probable; and this holds much more now, since civil laws concerning contracts can of themselves be applied in ecclesiastical matters. Wherefore he who, before acceptance, has revoked a donation of this kind will practically be held to nothing.

What if the promise or donation is made immediately to God for a Church?

God is not for that reason judged to have wished to have the thing in His dominion as a man would, but a promise or offering of this kind is valid as a vow; nevertheless, before acceptance, this vow is not reserved, since there is no acquired right for anyone. Cf. Ball.-Palm., III, 634, who adds that donations of this kind in doubt are judged to have been made to God.

I. Concerning the Defect of Error. 1. How manifold error is distinguished. a) Principle. Consent is especially vitiated by error, so that of itself, as it were in the first sign of reason, every error by which consent has been determined invalidates the contract. For it takes away the voluntary, and a contract is a voluntary exchange of rights. Yet the very security which a contract ought to give to each party forbids that every error be attended to; so that the contracting parties are judged, by a virtual ratification, to renounce the benefit of many errors, and they ought to renounce it. Which errors are to be considered, and which are to be neglected, we are taught by various distinctions.

b) Distinctions. Substantial and accidental error are distinguished. The former affects the essence of the contract: whether its nature (a donation instead of a sale), or its cause (you return money as if received in a loan, and it was not given as a loan), or its object, which, of itself or because of the definition of the parties, is essential. Wherefore a quality which is principally intended pertains to the essence so understood (it is said to redound into the substance). Thus if you seek wine for sacrifice, aptitude for sacrifice will be essential. Another error is accidental. Yet it can give cause to the contract, if without such error consent would not have been given.

2. What error effects of itself. Substantial error of itself annuls the contract; not likewise accidental error (even if it gave cause to the contract), unless consent has been expressly or tacitly subjected to the quality which is falsely thought to be present, as to a condition without which not (I contract if such a quality is had).

Yet if that error gave cause to the contract, and flowed from the deceit or fraud of one party, the other party can rescind the contract at his own choice.

Indeed, even if no fraud has been committed, as soon as error was truly the cause of contracting, Lessius, Iust. c. 17, n. 33, and St. Alphonsus, L. 3, n. 715, give to the party who erred the power of withdrawing from the contract, provided, as Genicot, I, 589, III, aptly adds, that he keep the other party unharmed.

If the error was vincible, the damages thence arising will have to be repaired according to the degree of fault.

3. What error effects from positive law. Positive laws by no means ignore the distinction of substantial and accidental error, but describe it variously, and because of substantial errors they render the contract void either by full right or at least after the sentence of a judge. But modern jurists are accustomed to distinguish an error by which all consent is so excluded that the contract is absolutely null, as if one party thinks that he is receiving as a gift what the other wished to yield only for a price (error in negotio); an error which begets only relative nullity, which is pronounced or admitted by the authority of a judge, as if there is error in a quality altogether necessary for the destination of the thing; and an error with which the contract subsists. Cf. e.g. Colin and Capitant, I, 68; II, 277 ff. For the most part the error of one party suffices for invalidating the contract; yet it happens that only mutual error is attended to from equity, or that rescission is not granted to the one erring except with the obligation of paying the damages which he has brought upon the other party by erring rashly. (Cf. Pacifici-Mazzoni, II, § 137; IV, 49-54.) Some errors, especially errors of law, will seem less excusable to the judge. In the U.S.A. an error concerning the law of a foreign nation is equated with an error of fact.

Concerning error, canon 101 establishes these things: "Error renders an act void, if it concerns that which constitutes the substance of the act or falls upon a condition sine qua non; otherwise the act is valid, unless something else is provided by law; but in contracts error can give place to a rescissory action according to the norm of law."

Of what law? Of the civil law in force in the region, unless we are mistaken, because of c. 1529, by which, in ecclesiastical matter, those things are said to be observed, unless divine law or a different disposition of canon law stands in the way, which the civil law establishes in the territory. But before this canon 16, § 2 warned these things: "Ignorance or error concerning a law or penalty or concerning one's own fact or concerning a notorious fact of another, generally is not presumed; concerning a non-notorious fact of another, it is presumed until the contrary is proved." Yet these things do not directly regard contracts. It also helps to recall this from the law of the U.S.A.: if, because of mutual error, or the fraud of one party, the contract does not agree with the true intention of the parties, the tribunal will, from equity, reduce the contract to the true intention of the parties.

What the individual civil laws have disposed concerning the effect of error does not seem to be ours to pursue at greater length ¹. The chief point is that we keep these few things in mind for conscience. It is lawful to estimate the effects of error according to natural law. It is also lawful for him who is not guilty of blameworthy fraud to use the protection of civil law, whether for invalidating or for confirming the agreement. And the sentence of a legitimate judge must be obeyed.

¹ Cf. e.g. the French Code, 1109-1110; Italian, 1108-1110; Austrian, 871-875; Swiss (Code of Obligations), 23-26; Netherlandic, 1357, 1358, 1485; Portuguese, 656-665; Brazilian, 86-91; Code of Germany, 119-122. Notable is this provision of the German Code: that damage must be repaired by him who erred to the other party who was without fault and suffered damage thereby (art. 122).

II. Concerning the Defect of Fear. 1. Distinction. A contract is said to be made from fear, if without fear there would not have been agreement; it is made directly from fear, if fear has been instilled in order to extort consent; it is made indirectly from fear, if fear has been introduced for another end, so that the contract in itself is just ¹.

2. Effects, with the law of nature considered. Omitting fear which so disturbs the mind that it takes away essential deliberation, and fear from within, or from without but just, by which a contract is not vitiated, all first oblige the author of unjust fear to repair damages. Then, if the contract is made directly from fear from without and unjust, some now permit him who has suffered fear to rescind the contract, provided the fear was comparatively grave (with respect to the trembling person), or, if light, nevertheless gave cause to the contract and there is question of a gratuitous contract or one which, like betrothal, requires greater liberty. They establish this from equity. Others deny that the contract is invalidated, unless the other contracting party was himself to be blamed for the crime, at least as an unjust cooperator. If he was to be blamed, they make the contract rescindable at the will of him who has been affected by fear; indeed some, at least, make it null, provided the fear was at least comparatively grave. - Fear which was neither a sufficient nor a necessary cause of the contract does not vitiate it, but obliges to repairing damages. - Finally, if a contract is made indirectly from fear, the contract is not rescindable unless the other contracting party was to be blamed.

Those solutions rest upon this principle, that the voluntary is not taken away by fear; but that equity requires that the juridical effects of an unjust action, as far as can be done, be restricted.

3. Positive laws.

a) What fear effects in canon law, we said in I, 81-84. Here it will be enough to recall that a vow emitted from grave and unjust fear is invalid; likewise a renunciation of an office or benefice made from grave and unjust fear; a marriage which someone had to choose in order to free himself from grave and unjust fear; admission into the novitiate and religious profession made from grave fear. Cf. c. 185, 542, 1°; 572, § 1; 1307, § 3. Nor is the obligation of celibacy and of the canonical hours contracted by him who, compelled by grave fear, received a sacred order, unless, with the fear removed, he ratified the ordination (c. 211, § 1).

b) Latin civil law. The Italian and French Civil Code render contracts entered from respectively grave and unjust fear null or rescindable. They do not attend to the person who brought in the fear. Nor do they judge reverential fear grave of itself. Cf. art. 1108, 1111-1114 Cod. Ital., 1111-1115 Cod. Gall. Similar are the laws of Latin America, e.g. the Brazilian Code, art. 98-101; Portuguese Code, art. 666; the laws of the Netherlands (1359); of Switzerland (Code of Obligations, 29). Yet this Code, if the other contracting party was in no way to be blamed, obliges the party who suffered fear and wishes to withdraw from the contract to keep the other contracting party unharmed. But the Austrian Code (870-875) does not invalidate a contract made from fear, if the other party neither was an accomplice nor manifestly ought to have known the force inflicted.

c) The Code of Germany, omitting the distinction of grave and light fear, grants to those who have suffered fear an action by which, within a year, from a judge, if he estimates that the parties were moved by unjust fear, they can obtain the nullity of the act (arts. 123, 124, 318).

d) In the U.S.A. contracts from fear (duress) are rescindable.

e) By English law, contracts are rescindable at the will of the party who suffered fear, if the fear was instilled by the other party acting or as accomplice. If the other party is not to be blamed, attention is paid only to fear by which reason is disturbed. Contracts which favor the party having authority over another can, when this other petitions, be annulled, unless the father or Superior or physician, etc., demonstrates the full liberty of the other party.

¹ E.g. in order to placate a father, gravely offended and threatening on account of another matter, someone offers himself as spouse to the daughter.

III. Concerning the Defect of Fraud. 1. Notion. Labeo defines fraud: every cunning, deception, contrivance employed to circumvent, mislead, or deceive another (l. 1, § 2 D. De dolo malo, IV, 3).

2. Effect from the law of nature. Fraud does not touch a contract unless it begets error; then at least it induces the obligation of repairing damage.

3. Effect from positive law.

a) Canon law, c. 103, § 2, establishes concerning fraud the same thing as concerning fear.

b) Latin civil law. The Austrian Code (871-875), adhering to the law of nature, establishes concerning fraud in proportion to the error effected and to the other party being blameworthy.

By Italian law (1115) and French law (1116), fraud renders an agreement null when the other contracting party is to be blamed, and it gave cause to consent. In juridical acts which are not bilateral, e.g. in acceptance or repudiation of an inheritance, they admit that an act is vitiated by determining fraud, whoever is guilty. If both parties have used fraud of the same efficacy, "fraud is compensated between each party." (Colin and Capitant, I, p. 70; Pacifici-Mazzoni, II, § 138.) Similar things are had in the Swiss Code of Obligations, art. 28; of Holland, 1361; and in the laws of Latin America. Yet attention must be paid to whether or not fraud effected by either party is required.

For art. 969 of the Code of the Argentine republic bears this: "Fraud affects the validity of acts inter vivos, whether it was effected by the contracting party or by a third party."

Therefore observe that because of grave fraud a juridical act can be invalidated even if no substantial error has been admitted.

c) The Code of Germany establishes concerning fraud the same thing as concerning fear.

d) In the U.S.A. the right of withdrawing from the contract is granted to the party who has been deceived by the fraud of the other party.

e) The law of England gives the option of nullity to the party who has been induced to contract by the fraud of the other. Indeed, in certain contracts which are called of the utmost good faith (e.g. insurance, sale of land, attribution of shares of an industrial society), mere concealment or reticence concerning a notable matter, which the other party had a right to know, confers the faculty of rescinding the act (Slater, Manual, I, p. 482).

Concerning Lesion. 1. From the law of nature. Lesion, or the damage which a contract brings upon another, easily follows error, but does not constitute in itself a defect of consent.

2. From positive law, can. 1681, § 2, an action for two years is granted to him who has suffered from a contract a grave lesion beyond half by reason of error, for obtaining rescission of the contract. - Civil laws often are silent concerning lesion, or, in only a few agreements, especially in sale and division of inheritances, grant rescission, because of enormous lesion, for some time, in favor of the seller or the heirs. In the law of the U.S.A. lesion is not of itself a cause of rescission. Yet in a case of extraordinary damage, joined with the miserable condition of the injured party, the judge will be able, from equity, to grant rescission.

— Natural reason counsels that an equitable interpretation of contracts is to be made, and the laws confirm it by their sanctions. Wherefore more than the letter, the intention of the parties must be attended to; - those making agreement are judged tacitly to have admitted whatever things, according to usages or laws in force, individual contracts carry with themselves: whether they knew them, or at least foresaw in a confused way that consequences of this kind pertain to the legal ambit of the contract: thus the obligation of providing eviction, which holds the seller; - because laws are more inclined to loosening than to binding, in doubts, regularly one must respond for the debtor against the stipulator. Cf. Cod. Italicum, art. 1131-1139; Gallicum, 1156-1164; Germanicum, 157, 242.

I. Who Are Obliged. 1. Contracts of themselves oblige only the contracting parties and those who hold their place: representatives and successors. - Yet an obligation can be strictly personal, which does not pass to heirs. That which passes is called real, and affects the patrimony. By the law which we use in Belgium, France, and Italy, any leasing of labor, and the obligation of a contract of society and mandate, is judged personal.

2. When a contract transfers the ownership of a thing, from it there follows for all a general obligation of preserving to each one his own. Nevertheless, a third party who in good faith receives from a donor or seller a corporeal thing or an anonymous title promised to another but not yet handed over, is preferred to him; and a contract concerning an immovable thing, before its registration, effects nothing except between the parties. Thus modern laws are accustomed to establish.

II. From what moment. The obligation arises from the moment at which the contract is perfected (cf. above n. 419). Although, however, a consensual contract is perfected from the moment of consent given and accepted, even before a writing is drawn up for proof of it, nevertheless the parties can defer the mutual obligation until that writing. Therefore one must see whether or not they wished to contract before that. In doubt one must respond rather for liberty. And when the instrument has been made, the obligation must be estimated rather from the instrument than from verbal declarations which were made before or afterward. Indeed, the Austrian Code, § 887, orders these to be disregarded.

I. Concerning an Added Condition. 1. Notions. Contrary to other stipulations often added to contracts, a condition affects the very substance of consent. For this is the intention of the parties, that they subordinate a juridical change, which is the object of the contract, to some future and uncertain event. Yet the contract itself is perfect; neither party, against the will of the other, can withdraw from it, or make worse the conditional right acquired for the other. Often, though not always (as if you have promised money to someone if he is reduced to poverty), it contains a virtual promise of not impeding the effect. A properly so-called condition signifies a future and uncertain event; and it is suspensive, if the obligation depends upon it; resolutory, if the extinction of the obligation depends upon it. Suspensive: I will give you one hundred if you obtain the prize; resolutory: every year I will pay you one hundred unless my revenues have decreased below ten thousand. - It is called casual when its fulfillment is not in the choice of the one making agreement; to this is opposed the potestative. It is purely potestative: if I shall will; simply potestative, when it is necessarily bound to the voluntary deed of the one making agreement: if I shall have gone to Paris; mixed, when its effect depends both on the will of the contracting party and on the will of another person: if I shall have bought such a house. - A possible condition is one which can be done physically and juridically. Otherwise it is impossible. A condition concerning a forbidden thing is impossible when made in such a way that from it the agreement becomes one of base cause. Here distinguish a reward promised for sin and a penalty promised after sin.

In broader usage a condition signifies a present or past fact unknown to the parties, or even a future certain fact.

2. Effects. a) A purely potestative condition effects nothing. - b) A condition concerning a present or past thing immediately destroys or firms the obligation. - c) A condition concerning a future necessary thing, of itself, is held as not added. Sometimes, however, from the intention of the parties, it will have force as a day. "If father shall die" often signifies: "after the death of father." - A condition concerning a base or impossible thing of itself invalidates the juridical act to which it is opposed. Nevertheless, if the parties were ignorant that the thing was impossible, and were so disposed in contracting that, with the error discovered, they would have contracted absolutely, the contract will be, in the internal forum, simply valid.

From Roman law the Codes of Italy and France borrowed the norm by which impossible or illicit conditions, added to testaments, would be held as not added (art. 849): which French law also extends to donations. But many modern laws have by no means imitated Roman law. Therefore one must see what the individual laws of the country establish concerning conditions which are judged illicit or impossible. Thus the Brazilian Code, art. 116, holds physically impossible conditions as not written, while it establishes that juridically impossible conditions invalidate the act to which they are added. Nor must one attend less to what conditions are held morally impossible: suppose the condition "provided that the widow shall not have contracted other nuptials."

The disposition by which a condition is held as not added can be observed in conscience, since the law can supply consent itself. Yet if the contrary mind of the testator is established, execution can probably be denied, as something commanded from a false presumption. - What has been said thus far holds in canon law, because of c. 1529. Yet the Code disposes special things, outside the matter of contracts, concerning conditions in rescripts (c. 39-41); in elections (c. 169); in election by compromise (c. 172, § 3); in marriage (c. 1092, 2319); in the resignation of a benefice (c. 1486); in foundations (c. 1492); in renunciation of a parish (c. 2150).

d) A properly so-called condition which is suspensive: before the event, suspends the principal obligation, obliges one to await the event and to abstain from acts which would render the object of the obligation impossible. Wherefore, e.g., a thing conditionally promised cannot be alienated absolutely. Nor can the event itself be unjustly impeded. Here the intentions of the parties must be consulted. He who has unjustly impeded the event is held for damages. - When the event has followed, the contract passes into the absolute. In some Codes, e.g. of Italy and France, it is then judged to have been such from the beginning, yet in such a way that the parties, by their mutual consent, can impede that consequence. But that retrotraction is by no means commanded by the nature of a condition. Wherefore the more recent Codes of Germany (art. 158) and of Switzerland (Code of Obligations, art. 151-156) did not admit it, so that the parties themselves must explicitly declare the will of retrotraction; nor by that will can they prejudice the rights of third parties (cf. Colin and Capitant, II, p. 164-167). - e) A condition which has been resolutory impedes no effect of an absolute contract; but when the condition has been fulfilled, the obligation is destroyed, and the contract is resolved as if it had not been. Therefore that condition suspends not indeed the first esse, but the resolution of the contract.

3. Fulfillment of a condition. Of itself a condition must be fulfilled in its proper species or form. An equivalent does not suffice, unless the mind of the one placing the condition bears a different interpretation. Thus once they judged the condition "if you marry" to be fulfilled if the girl became a nun. He who owes conditionally can remit the condition.

In our positive law, in bilateral contracts this resolutory condition is understood: "if the other party does not stand by his promises"; so that the first party can either urge the contract or juridically obtain its resolution from a judge (who can grant a delay) (art. 1165, Cod. Italicus; 1184, Gallicus). The Portuguese Code, art. 709, establishes the same; and the Brazilian Code, art. 1092, gives a similar faculty, yet conceived differently.

II. Concerning an Added Day or Term. 1. Notion. A day or term is a future and certain event (at least certain as to whether, although not always as to when), from which not indeed the obligation but the necessary execution takes its beginning, or after which it ceases.

2. Distinctions. There is distinguished a day from which and a day to which; a day established in favor of the creditor, in favor of the debtor, in favor of each. It is presumed to have been added in favor of the debtor. A debtor who does not pay when he ought is said to be in delay.

A day is established for ending and a day for urging the obligation, so that, when the day arrives, the debtor is not freed but is to be blamed.

3. Effects. A day does not render the bond itself uncertain or future, but merely influences the beginning or end of necessary execution.

4. Renunciation or loss. He in whose favor it was established can renounce the day. Indeed, sometimes it is lost by the law itself, and payment can be exacted before the day, as if someone is compelled to make cession in court.

N. B. - In no law, after the day has arrived, is the day judged to be drawn back to the moment at which consent was given. Wherefore laws which do not even in conditions admit retrotraction of itself equate the day from which with a suspensive condition; the day to which with a resolutory condition. Thus art. 162 of the Code of Germany. It also has, in arts. 186-193, norms concerning the computation of time which are sufficiently similar to the norms afterward added in the canonical Code, c. 31-35.

III. Concerning an Added Mode. 1. A mode is a certain burden or charge imposed on him who acquires a right from the contract. E.g. I give you a thousand, but you will take care that every year five Masses are celebrated for me.

2. The effect must be measured both from the mind of those making agreement and from positive law. For a burden can sometimes be constituted without obligation of conscience: "I give you one hundred, but for honorable recreation"; sometimes under the obligation of mere fidelity: "I give you one hundred, but you will study." When from the intention of beneficence something is promised or given, with a mode added which is for the utility of the promisee, he will for the most part be held by no obligation, at least of justice. - Sometimes there is a strict obligation of justice of observing the mode, yet in such a way that, when it has been violated, the principal stipulation nevertheless stands, and, for the mode neglected, satisfaction merely must be made. - Sometimes, when the mode has been violated, the principal act itself is judged to be revoked: then the mode ceases in a resolutory condition of the donation, legacy, etc. Cf. Molina, Iust., I, d. 208; Lugo, Iust., d. 23, n. 111. - One must see what the laws bear, what the parties wished.

An accessory mode which is base or impossible, unless it is imposed as a condition, considered under natural law, is held as not added, and the act is simply firmed.

This is very worthy of note for conscience: that a donation or legacy made under a mode which is not fulfilled can be valid, indeed of itself is not invalidated. This more absolute firmness distinguishes a mode from a condition.

IV. Concerning an Added Cause. 1. Notion. A contract is said to be made under a cause when the end on account of which something is given or promised is explicitly added: "I give you one hundred so that you may buy books, because you are poor."

2. The juridical effects are to be estimated as in a mode. The principal intention of the stipulator under the cause must be attended to.

Thus a prince who gives money to a servant so that the servant can sit upon a horse, if he sought for himself the adornment of a servant riding, will be judged to have obliged the servant to have a horse; otherwise if he wished merely to consult the convenience of the servant. Hence he licitly keeps for himself money given for taking a carriage for carrying on business in a distant place, who, depriving himself of that convenience, made the journey on foot. But the vow of poverty will stand in the way so that a religious, using similar reasoning, may not expend otherwise the money which he thus saves.

V. Concerning an Added Demonstration. 1. Notion. A demonstration is had when, besides the necessary indication of the object, a more accurate description of a quality of the thing, of quantity, is added. E.g. I sell you this field, which consists of one hundred jugera.

2. Distinction and effects. According to the mind of those making agreement, the description can be demonstrative or taxative. If it was demonstrative, neither will falsity harm the contract, nor must a defect be supplied or an excess removed. If it was taxative, the error at least must be corrected, or the contract falls, if from this it appears that consent toward the same object was lacking.

A designation is judged to have been made taxatively by him who promises the thousand francs which are contained in such a chest; but demonstratively by him who sells such a field and describes it as consisting of so many jugera. But attention must be paid to positive laws.

VI. Concerning an Added Disjunction. 1. Notion. A contract is made under a disjunction when some option between two performances is left.

2. Distinction. An option can be established in favor of the debtor and also in favor of the creditor. When it has been established in favor of the debtor, a facultative obligation must be distinguished from an alternative one.

3. Effects. An obligation is called facultative when the stipulation was made concerning one thing only, but it is open to the debtor to substitute another in place of the thing promised. Then, when the promised thing perishes, without fault and delay of the debtor, nothing is owed.

When a disjunctive stipulation has been made concerning each thing, the obligation is called alternative. Then the obligation is not destroyed unless both things have perished, without the fault of the debtor and before he has been in delay. Nevertheless, in a gratuitous promise, as also in a vow, the destruction of one thing can render the execution of the contract or vow grave or burdensome, so that the one promising can withdraw from the contract. If the option has been established in favor of the creditor, when one thing perishes, the creditor can of himself seek either the other thing or the price of the thing which has perished.

The debtor will have to repair damages for blameworthy delay according to the general rules.

VII. Concerning Added Confirmations. To strengthen the force of agreements, principal stipulations are fortified either by a promissory oath, or by a penal clause, or by earnest money.

1. Concerning the promissory oath, treatment was given above, n. 193-204.

2. A penal clause, or penal mode, or stipulation of a penalty, can be added to a contract: a) to urge its execution, although no damage arises from delay or omission; b) to estimate beforehand and by mutual consent the damages which either defect of execution or delay are foreseen to bring.

A penalty of the former kind is not contracted without fault: and indeed theological fault, unless the parties have disclosed another mind. According to the more common opinion, it is not owed unless it is sought, and some permit payment to be deferred until the sentence of a judge.

The other penalty, if it appears moderate, is owed in conscience as often as damages would have to be repaired; nor must one now attend to the damages truly following, since an aleatory estimation has been made.

If it was promised for omission of execution, the creditor can urge execution in place of the penalty.

3. Earnest money designates certain things handed over by one party to the other on the occasion of some contract, whether as proof that the contract has been made: probatory earnest money; or for firming its obligation by the sanction of losing the earnest money: confirmatory earnest money; or for giving place to repenting and withdrawing from the contract: penitential earnest money.

— The following extinguish an obligation from a contract:

I. Payment of the debt. 1. What it is. Payment, here generally, signifies the performance of every thing owed, or the execution of an obligation, while more strictly it is the payment of money owed.

2. Who can pay. Payment supposes a capable debtor. When there is question of a thing to be rendered, the one paying must be owner of the thing and have capacity for alienating it. The handing over of another's thing is, of itself, absolutely null (saving what was said concerning acquisition through possession in good faith, from positive law); handing over made by an incapable person is relatively null, as we indicated above in n. 415.

But any capable person whose interest is involved can pay: e.g. the buyer of a house subject to a hypothec, a surety; indeed any other person, if there is question of a performance sought without regard to the person.

3. To whom payment is to be made. Payment of itself is to be made to a capable creditor, such as a minor by age is not, or to the person who represents the incapable person. And, in French law, payment made to a minor by age is simply null, without consideration of lesion. Laws also define how acceptance of payment can be imposed upon an unwilling creditor.

4. What must be paid. That which is owed must be paid. And indeed: a) saving a peculiar stipulation, the whole at once, not by successive parts. Yet there are exceptions to this rule. Thus, in French and Italian law, when an inheritance is divided, debts are divided among the heirs, who therefore will individually have to pay only a part of the debt; by compensation (of which presently) part of the debt can be extinguished; finally the judge himself can prudently grant to the debtor the benefit of partial execution. Cf. Colin and Capitant, II, p. 76 ff.; Pacifici-Mazzoni, IV, p. 530 ff.

b) The performance must be, according to the nature of the thing and of the contract, of the promised quantity or of the promised value. When money is to be paid, positive laws are accustomed to establish that the sum owed is to be counted out either in metallic money, or in "values" which the law has equated with money. Observe, however, concerning metallic money, that coins below 5 lire are so struck (lest they be too easily transferred elsewhere) that the true value of the metal is far surpassed by the nominal value. Wherefore the creditor cannot at all be compelled to accept in payment, beyond the sum defined by law (suppose 5 or 50 lire), money of bronze or nickel, indeed silver coins of one or two lire. Values which are equated with money are customarily banknotes; sometimes also, as in Italy, titles of public credit.

5. The modern difficulty. But today, in more than one region, the right of demanding immediate conversion into metallic money, which is written on the notes (pagabile a vista, al portatore), is suspended. A suspension of this kind completely changes the nature of the note: previously it represented true metallic money and possessed its value, indeed not rarely, because of facility of transfer, it became of greater value than metallic money; now it represents a credit forcibly conceded to the State by all who possess banknotes. But the value of credit is measured by the confidence which the debtor enjoys. This already is diminished because of the coercion itself. Add the faculty which the State has of infinitely increasing its debts by multiplying banknotes, so that soon the true value of those notes clings far below the value written on them, while before it agreed with this value. In a word, a debt-note "to the bearer" has become money properly so called, but paper money.

In this state of things, a grave question of conscience arises: whether or not it is lawful to extinguish true debts by counting as true the nominal value written on the banknote. If the law permits this to be done, does conscience also permit it?

Concerning this matter these things seem to us to have to be said.

1. If the debts were contracted recently, an affirmative response can easily be given, since the debt is paid in the same circumstances in which it arose. Therefore there is no one for whom there is cause of complaint.

2. Bankers and money-changers, since in their daily business they must receive payments made according to the norm of law or nominal value, can also in paying their own debts stand by positive law. Otherwise they would fall into certain ruin. Wherefore that mode of acting is conceded to them by the common estimation which governs and defines just prices.

But what of private men?

a) First of all, in the prices of all things increased today, one must separate the increases which are to be attributed to the true dearness of things and the increases which are to be attributed to corrupt money. We are concerned only about the latter increases. For although, because of the greater dearness of things, the same sum of true money is less useful than before, nevertheless, considered from justice alone, a greater sum will not therefore have to be paid, because that circumstance is extrinsic to the money which is paid. Add that it is well enough known that prices not rarely vary, so that, in making agreements, the parties have tacitly admitted that risk; and besides, in daily business, most people in selling things or in leasing works find a source from which they compensate in some way for purchases to be made at a dearer price.

Nevertheless, deliberately we said, "considered from justice alone." For equity and a grateful mind sometimes will persuade one to act in a different way. Suppose someone who, with a beneficent intention, bought the house of religious punished with exile, at the same time promising the religious that if it should happen that they return to their fatherland, they could buy back the same house for the same price. Will it be consonant with equity and gratitude that the religious recover their house by handing over to the benefactor money whose present utility is greatly diminished?

Indeed, in cases of an unforeseen and excessive variation of price, natural justice itself can require that either the contract be rescinded or, whether by friendly settlement, or even by the authority of a judge (if the law permits this to the judge), be reduced to equity.

b) But, now neglecting the consideration of the dearness of things itself, let us examine the more difficult case concerning paying a debt, e.g. concerning returning borrowed money in a region where already only paper money has been accustomed to be handed over, while the debtor had received metallic money or something equivalent to it.

If between metallic money, e.g. gold, and paper money, the difference is not excessive, the law can consult common peace and facility of commerce by establishing a plain rule of payment according to nominal value: public utility can be purchased by some private detriment. But beyond certain reasonable limits, this power of law does not seem to be extended. For no more than by the law of prescriptions could the legislator, as it were, reward bad faith, can he by rules of payment despoil citizens of their goods. Nor could the mind of the legislator have been that he who gave money of true value must be content by receiving paper money which morally has no value, as happens today in several regions.

But between cases in which the value has decreased almost to nothing and cases in which money has remained of the same value, there are several intermediate cases concerning which it will be less manifest what justice requires. That we may suggest some norm, this seems able to be established: the rule of natural justice must be observed, which obliges one to pay things of the same value, when payment of an old debt made according to nominal value would bring damage to the creditor beyond the fourth part.

Nor does it help to object that it can happen that the debtor is also a creditor to whom a lesser value is repaid by others. For it is not lawful for you to steal because you suffer theft.

Practically, however, account can be taken of those who offer the more benign opinion, at least when paper money retains a notable value. Then no obligation can be imposed as truly certain. But if someone should wish to pay a debt of gold money or its equivalent with money which today represents morally nothing, the inequity seems to us too manifest for it to be tolerated, outside extraordinary cases.

Finally, this cannot be passed over: laws concerning the payment of debts almost do not speak except about gold and silver coins, so that present-day circumstances seem by no means comprehended by the intention of the legislator. Hence those laws make less secure those who wish to use them for making extraordinary profits against natural equity.

II. Novation,. i.e. the transfer and transfusion of a prior debt into another obligation (L. 1. D. De Novat. XLVI, 2). It can be of threefold kind, according as the object is changed (instead of an ox, pay 400), the debtor (instead of Titius, Sempronius will pay), or the creditor (what you owe me, pay to Caius).

This is the effect of novation: rights and duties are to be measured from the new title which is substituted for the prior one. In a similar way, when a just sentence has been pronounced concerning a litigated matter, now the titles which came into controversy are not to be considered, but in their place the sentence has succeeded as the sole valid and efficacious title: the sentence has pronounced this as the law. Wherefore the sentence, as they say, effects novation. And in a similar way, when, because of an equal doubt of fact, we say that a thing must be divided between two who remain doubtful concerning their right, a certain principle of justice concerning the preservation of equality between persons eliminates and destroys the probable reasons because of which someone might say: perhaps one has less than what he ought. What is his own, neither more nor less, each obtains by force of a novation of this kind.

III. Remission of debt made by a capable creditor.

IV. Compensation, "which is the contribution of debit and credit between themselves" (L. 1. D. XVI, 2). It is had as legal compensation when, because of a debt of a similar thing, liquid and demandable, by which the creditor is held, both debts are reputed paid. Facultative and judicial compensation will exist when, with some condition of law lacking, by private agreement or by the authority of a judge, there is made "a contribution of debt to debt and a comparison in the force of payment" (Calvin's Lexicon).

V. Confusion, which is had when one and the same person would have to sustain the person of creditor and debtor: e.g. if the debtor becomes heir of the creditor. For no one can owe anything to himself from justice.

VI. Loss of a certain thing which is had. Of a certain thing, I say; for a genus never perishes. If the thing perished by the fault of the debtor, or if the debtor was in delay, or if he contracted an obligation of standing for a fortuitous event, often, at least from positive law, damages will have to be repaired.

VII. Rescission of the contract.

VIII. A resolutory condition which has arrived. Then things are restored "to the state in which they were before," as if the obligation had never existed.

To this pertains the option which positive law gives in bilateral contracts, against the party which has not stood by its promises, as was said at the end of n. 428.

IX. Liberative prescription. Cf. above, n. 400 ff.

N. B. Sometimes causes exist on account of which, whether from the law of nature or from positive law, execution can not indeed be omitted, but deferred. Cf. what is to be said concerning restitution.

You ask what is effected by circumstances which, beyond expectation, have arisen or have ceased?.

These demonstrate an error of precision. Wherefore the things said concerning error can prudently be transferred here.

Standing by the law of nature, if the cause is intact, or if damages are repaired, revocation of consent can be admitted where the circumstances reasonably have force as tacit conditions, or where the false foreseeing of them at least gave cause to the contract. A gratuitous contract will be dissolved more easily than an onerous one. Yet betrothal, which ought to flow from mutual love and prepares an indissoluble bond, requires easy retraction because of circumstances, although it is an onerous agreement.

On the contrary, consent into a contract by which a state firm and perpetual of itself is introduced is judged to be especially absolute.

But carefully distinguish the will which now is changed from the will which never would have been if such a thing had been known or foreseen. A present change of will is juridically inefficacious. Cf. Lugo, Iust. d. 22, n. 90.

From positive law, changed circumstances effect nothing of themselves, if you except donation, as will be explained in its proper place.

Article II. - On Various Contracts in Particular.

I. Notions. 1. Definition. Census, in general, is an annual pension, to be paid to another, which burdens some immovable good, or some capital of a thing, or some patrimony.

He to whom the pension is to be paid, or the creditor, is the censualist; the debtor of the pension is called the censuary.

2. Distinction. There is distinguished a perpetual census, and a temporary census, which is chiefly the life-census. It is redeemable if the censuary, by paying a certain sum, can free himself from the burden of paying the pension; otherwise it is irredeemable.

3. Constitution. The obligation can arise by onerous title, especially through contract, and by gratuitous title, through donation or legacy, as when a testator obliges his heirs to pay an annual pension to a well-deserving person. Not rarely, where this can be done civilly, a census is bequeathed to a church or to a pious cause.

4. The contract of census is a contract by which the censuary obliges himself, whether in perpetuity, or for a definite time, or for the life of a definite person, to pay an annual pension to the censualist. If he obliges himself on account of a thing handed over to him, that thing cannot be claimed back, and thus the contract of census is distinguished from the contract of mutuum.

Formerly a sum was rather paid so that one might acquire the right of receiving an annual pension from a thing already possessed by the censuary, or even from fruitful labor which he was judged to perform. This census, which was called personal, so that it might be distinguished from the real census (from a field), fell under suspicion of disguised usury. And in truth this mode of fruitfully placing money, if the labor of the person was not truly fruitful and by the redemption of the census the capital had to be restored, easily covered lending of money at interest. Today, however, since it is generally lawful to lend money at moderate interest, this contract among private persons has become obsolete.

Modern States, however, besides the debt which they contract in a form also usual for private persons, often provide themselves with necessary moneys in this way: they create saleable titles of public credit to the bearer, which give to the buyers the right of receiving an annual sum from the revenues of the State. When that right is of itself perpetual, since the buyer can never demand the restitution of his money, there is had a true constitution of perpetual census; nevertheless this census is redeemable, inasmuch as the State reserves to itself the right of freeing itself from the burden by paying the sum which is inscribed on the title and is called its nominal value. (Suppose a title of 100 pounds, for which, when they have been received, the State pays each year [printed blank]. It will redeem the obligation by paying 100.) Often, however, from the beginning it establishes that within a certain space of time, for example [OCR/printer uncertain: first digit missing, printed as 00 years], its debt is to be extinguished. Then, each year, titles are designated by lot in a defined number, which it will extinguish by payment (Rendita ammortizzabile, rentes amortissables^†). Those who buy titles for this constituted census have in truth merely lent money at interest to the State, although the name of census is preserved.

II. Perpetual and Life Census. 1. Not all laws admit the private constitution of a perpetual census. Thus the Brazilian Code, 1124, excludes perpetuity by the very definition of the contract of census. Other laws, such as the French and Italian Codes, admit a perpetual census, but make it essentially redeemable by the censuary. So also does the land-census of the German Code, art. 1199. Nevertheless they can agree in French law that it cannot be redeemed before ten years, or, in Italian law, before thirty years, if an immovable thing has been handed over, or without a certain prior notice.

2. While the use of another census is rare, the life-census is most frequent. It is constituted for the life of some person, who for the most part, but not necessarily, is the censualist or creditor himself. Indeed it can be constituted for the life of several persons, so that the whole is owed until all have died. This census is not redeemable. It can be constituted by gratuitous or onerous title; and then it is an aleatory contract, which will be just if, after computing the probable expectation of life through which it is owed, the sum of the pensions equals the capital and its fruits, decreasing each year pro rata. Practically, one must stand by the judgment of experts, unless both parties, conscious of their ignorance, have spontaneously wished to commit themselves to a greater chance.

Since the constitution of a life-census is sometimes made in order to despoil heirs, it is well understood why the Brazilian Code, art. 1125, declared null the constitution of a census in favor, not only of a person already deceased, which is manifest, but also of a person who within thirty days from the celebrated contract dies from an illness with which he was already then afflicted.

I. On Transaction. 1. Notion. Transaction is a contract by which, by a mutual but onerous renunciation of the parties, a controversy concerning a doubtful right is ended. - Contrary to an amicable composition, it brings in no gratuitous cession even of a partial right, although it is often mixed with a certain condonation.

2. Norms. Transaction supposes a doubtful right; and the just price must be estimated from the probability which, at the moment of the agreement, the right had. It can be vitiated by various error. In our law it bears strict interpretation. He alone who can alienate a thing can transact concerning it.

This peaceful mode of ending lawsuits is so commended by the Code of Canon Law that the judge himself ought to employ exhortations toward obtaining it. Cf. c. 1925. Nevertheless the solemnities for the alienation of ecclesiastical things must be applied. Cf. c. 1927, which also guards against simony at least of ecclesiastical law, by being unwilling that a transaction be made "concerning spiritual things," whenever the payment of a temporal thing intervenes. Moreover, also in ecclesiastical matters, the civil laws of the place where the transaction is made are to be observed (can. 1926).

II. On Compromise. 1. Notion. Compromise is an agreement by which, for avoiding or ending a lawsuit, the parties commit the controversy to be settled to the judgment of one or more persons. If, from the intention of the parties, which is presumed such, they ought to settle the question according to the norm of law, they are called arbiters; but arbitrators, if they transact the business according to good and equitable (c. 1929).

2. Things to be observed. In ecclesiastical matters laymen cannot validly exercise the office of arbiter; and the solemnities for the alienation of ecclesiastical things are to be observed (c. 1930, 1931).

For certain questions to be solved which consist in fact, the judges themselves are accustomed to designate experts {experts}.

III. On Concordats and Similar Agreements. To the genus of friendly or coerced compositions there are to be referred various agreements which debtors who are not solvent enter into with creditors, or which even, through the mediation of a judge, are imposed on creditors. But one must distinguish:

1. An agreement by which the obligation of paying is merely deferred for the debtor: concerning this agreement nothing particular occurs to be said.

2. A voluntary cession of goods which the debtor has made so that creditors may cease from judicial pursuit. Besides that effect, does it also hold as a remission of the remaining debts? This wholly depends on the intention of the parties, from the words which they have used. But, in doubt, the negative parts are to be held, because, as several Codes have (for example the French, 1315; Italian, 1312; Dutch, 1474), remission of debt is not presumed but must be demonstrated. Creditors, however, were not compelled positively to reserve their rights. And perhaps, on account of the modest hope of obtaining more afterwards, they abstained from an express reservation, without any intention of condoning the remainder. If, however, somewhere the persuasion has prevailed by which an agreement of this kind would be understood as concerning full remission, then, with Genicot, I, 604, the silence of creditors could be held as a renunciation, since a different clause would be so easily placed in the agreement.

Concerning judicial cession of goods there is no longer reason for us to speak. For this was done lest the debtor be apprehended bodily on account of debts. But since now a favor of this kind is shown to have been conceded to every debtor who was in good faith, judicial cession of goods has become obsolete.

3. Merchants, however, make so-called concordats with creditors, by which they obtain either that imminent bankruptcy (fallimento, faillite) ¹ be met, or that bankruptcy already made have an end. Concordats of this kind, at least if the greater part of creditors (defined by a certain ratio) have given assent, are confirmed by the authority of the judge and are imposed on the rest. In the U.S.A., and also in England, an unfortunate debtor can, at least in the external forum, obtain liberation from a judge.

It is now asked whether the debtor who afterwards can pay more than the proportional part with which the creditors were content or ought to have been content, is bound to supply the remainder, or whether, on the contrary, he can consider himself freed from every debt.

Writers go off into various opinions. Several, relying also on ancient authorities, deny liberation altogether unless liberation is expressly conceded; some, but rather hesitantly, seem to incline to the more benign parts, at least in some regions. And in truth various regions must be distinguished.

In France, cession of goods, from art. 1270, and a concordat do not take away the natural obligation. So the writers. The same seems to have to be said concerning Italian law, both on account of art. 1312, Civil Code, and on account of the chapter on concordats in the commercial Code, where not even an insinuation of full liberation is had. So also Ballerini-Palmieri, III, 513. The same seems to have to be said concerning Spain and other regions of Latin law and concerning Germany. In Belgium, the clause is customarily added: "provided that affairs do not become more prosperous" (sauf retour à meilleure fortune): that clause bears this interpretation, that the debtor owes nothing until he is able conveniently enough to satisfy all his debts. - In the Netherlands, there are serious reasons for thinking that the law concerning judicial concordats wished to extinguish every debt in conscience. Cf. Duijnstee, n. 235. - In England, both Crolly, De iust. et iure, III, 1232, and Slater, A Manual, I, 138 and 151, think that by liberation simply conceded by creditors, and by judicial liberation, debts are also removed in the internal forum.

In the U.S.A. the Bankruptcy Act, 1 July 1898, with additional changes in 1903, 1906, 1910, has such words that at least probably debts of conscience are extinguished. Cf. Martin apud Slater, p. 438-451.

Certainly, on account of the common good, so that hope may be restored to an honest merchant, the law can concede such condonation. But the debtor, in order that he may be able to use this favor, ought to have honestly done what the law ordered to be done, and to have abstained from every fraud in the concordat itself.

¹ For proper bankruptcy belongs merely to merchants. Others who are unable to pay are said to fail their creditors (sont déconfits, tombent en déconfiture).

I. A contract is the consent of two or more persons in the same juridical agreement, while a quasi-contract is an honest fact, existing by the authority of law or by the voluntary will of someone, which produces a certain obligation of justice. A contract can be considered in fieri, or in its constitution, and in facto esse, or in the permanent effect which it produces.

II. Division. Contracts from the end of those operating are gratuitous, onerous, or mixed. They are gratuitous when the promise or performance of one party is compensated by no repromise from justice. Otherwise they are onerous, and indeed properly or analogically: properly, if compensation is made by commutation, equal or unequal, with the very performance of the other party; and most properly, if the commutation is equal; improperly, if, without commutation, on occasion of the performance of the other, another title is verified obliging to a certain payment: as is the title of sustenance obliging to taxes to be paid for sacred ministries; and, in civil society, obliging to "honoraria" to be paid to him who has fulfilled a ministry of a superior order, as is a professor by whom knowledge is communicated, a physician by whom health is procured, an advocate by whom right is defended, a judge by whom right is rendered. A contract is called mixed in which only a partial price is required. - Moreover, the equality of commutation is either between the thing given and the thing accepted, as in sale, lease, exchange; or between rights in common things and contributions, as in partnership; or between two uncertain hopes, or between an uncertain hope and a present performance, as in aleatory contracts, such as insurance is. And the reasons of these contracts can be mixed, so that sale and lease, partnership and insurance, can be had at the same time.

From the end of the work, every contract changes rights; but some contracts, where laws allow it, change real rights, while others generate obligations.

From the effect of generating obligations, contracts are unilateral or bilateral (synallagmatic); nude or clothed (with a civil action); some are valid, firm, or infirm in various degree: either null of themselves, or only rescindable;

From form they are consensual, which take the beginning of obliging from the consent of the parties, or real, which take it from the fact or handing over of the thing; solemn or simple, according as the expression of efficacious consent is bound to a certain mode or not; express or tacit, according as consent is expressed by signs applied or by fact;

From appellation, they are named or unnamed;

From subsistence, some are principal, others accessory.

III. Constitution. The elements by which a contract is constituted are some essential, without which it would be null or another contract; natural, which are judged to be present unless they are positively excluded; accidental, which must be positively added in order to be present.

Every contract is made concerning some thing or matter, which is its remote or proximate object, and it requires consent or a conspiring together of the wills of persons who are capable by law. Several, as a third element, add a lawful cause, or proximate motive which, known to each party, enters the contract. The legislator sometimes supplies this.

IV. Proper efficacy. Every contract changes rights, whether real or personal: in which case there arises in either or both contracting parties an obligation of justice, which, unless it has been strictly personal, affects the patrimony, and differs from an obligation of fidelity, light in its genus.

Every contract expresses a voluntary commutation of rights, so that the transfer of rights can be explained by the true and mutual interior and exterior consent of the offerer and the acquirer. By the law of nature alone, consent must be made known to the offerer, but not to the acceptor as such. In a solemn contract, consent must be expressed in a certain form.

A will not to obligate oneself cannot be combined with true consent; but a will not to execute the obligation undertaken can be.

V. Vices. A contract is vitiated by error and fear. 1. Substantial error, which affects the essence of the contract, i. e. its nature, cause, essential object, of itself annuls the contract; accidental error concerning a quality which is required as a condition sine qua non operates the same. And error which, from the deceit of the other party, gave cause, that is, occasion, to the contract permits the deceived party to withdraw from the contract. Every error giving cause also permits this, provided the other party is made unharmed. Damages from vincible error will have to be repaired according to the degree of fault.

2. Omitting fear disturbing reason, and fear from within, or from without but just, every other fear obliges its author to repair damages. On account of fear from without and unjust, which is imputable to the other party, the one who has directly suffered fear can at least rescind the contract, provided, comparatively, i. e. with attention to the person fearing, the fear was grave or gave cause to the contract. Several also concede this, whoever was the author of the fear. If the contract is made only indirectly from fear, the contract is not rescindable unless the other party was to be blamed.

3. Deceit by the law of nature effects nothing unless it has produced error. But attention must be given to positive laws.

4. Lesion of itself does not affect a contract, unless from some positive law.

VI. The interpretation of contracts must be made according to equity, so that in doubt the response is rather for the debtor.

VII. Extension and variety of obligation. 1. Of themselves only the contracting parties and those who hold their place are obligated: representatives and successors, unless the obligation has been strictly personal and not real; for a real obligation affects the patrimony. But dominion transferred by contract all must of themselves reverence.

2. An obligation of itself (unless a different mind of the parties is demonstrated) has its origin from the moment of the perfected contract.

3. Subordinated to a condition which is not merely potestative, and which is possible and suspensive, an obligation is suspended; but, when the condition arrives, in some law it is judged to have existed from the moment of the contract. If the condition is possible and resolutory, the obligation holds meanwhile, but, when the condition arrives, it is so extinguished that as to several effects it is judged never to have existed. A purely potestative condition, since it leaves the obligation entirely to the will of the party, effects nothing; a necessary future condition sometimes holds for a day; an impossible condition of itself, if suspensive, weakens the contract; if resolutory, it does not extinguish the contract. A shameful condition is morally impossible. But one must see what laws establish concerning these conditions.

4. A day from which affects not the obligation but the execution: it defers this; it ends the same if it is a day to which, unless it was established for urging the obligation.

He in whose favor the day has been established can renounce the day: it is presumed to be the debtor; but it can be the creditor or each.

5. Mode is a burden or charge imposed upon him who has the right from the contract; its effect must be estimated both from the mind of those agreeing and from the law.

6. The same must be said concerning the express cause for which one contracts.

7. An added demonstration, or more accurate description of the object, can be merely demonstrative, which lacks juridical effect, and taxative: in which case, the falsity having been detected, either the contract falls, or the error must be repaired. Positive laws must be consulted.

8. An added disjunction allows a certain option to be present: whether it permits the debtor to substitute another thing for the thing which alone was promised (facultative obligation), or the stipulation itself has been made disjunctive (alternative obligation). This of itself does not cease unless both objects have perished.

VIII. Confirmation of contracts. The force of agreements is strengthened: a) by a promissory oath, concerning which above; b) by a penal clause, whether for soliciting execution, in which case the penalty is not owed unless it is sought and the debtor is to be blamed; or for estimating damages, in which case it is owed whenever damages would have to be repaired; c) by earnest-money, which can be probatory, confirmatory, which is lost if execution has been lacking, and penitential, which gives place to receding from the contract.

IX. Extinction of obligation. The obligation of a contract is extinguished: a) by payment of the debt; b) by novation, by which an obligation is changed into another; c) by remission of the debt; d) by compensation, which is "the contribution of debt and credit between themselves," and can be legal, facultative, or judicial; e) by confusion, when the one who was creditor becomes the same as debtor, or conversely; f) by loss of the certain thing which is owed; g) by rescission of the contract; h) when a resolutory condition arrives; i) by liberative prescription.

There are also causes, especially damage, which permit delay of execution.

Unforeseen circumstances, by the law of nature, will be able reasonably to hold as tacit conditions, yet in such a way that the other party is not damaged thereby.

I. The contract of simple promise, which must be distinguished from a simple proposal and from a promise from fidelity, or from an obligation of mere faith concerning a good and possible thing, is a deliberate and spontaneous concession of a right to another accepting, toward some good and existing or possible thing.

Only an obligation of justice is grave: but they estimate grave matter at four times the quantity of theft absolutely grave. Nor is an obligation of justice presumed, but it is demonstrated either by words or by other indications, for example of mutual promise; it has its beginning from the external acceptance of the promisee, unless the promisor, for example on account of the form of letters, is judged to have wished to defer the obligation until acceptance was made known. If the promisor dies before acceptance, positive laws and, from the law of nature, the mind of the promisor, must be attended to.

II. Donation is a gratuitous contract by which one person, the donor, from an intention of liberality, concedes to another, the donee, his own thing as to dominion, without any obligation of restoring. Donation remains true, although it is allective.

It is often a solemn contract, unless donations made by short hand, or covered under the form of an onerous contract, are admitted.

Donation inter vivos and donation mortis causa are distinguished: the latter is revocable even up to death, and must be accurately distinguished from a donation, even under the condition of death, made by a sick person, or from a donation revocable in a certain case, for example if I recover. For several present-day laws do not admit donation mortis causa.

Persons ought to be capable of giving and accepting, whether for themselves or for a person whose goods they administer; and justice forbids a debtor to harm creditors by largess.

Attention must be given to laws which, from the presumed will of the one giving, oblige an heir to bring back received things or capital into the inheritance which he wishes to enter (collation).

III. Commodatum is a contract by which some thing, as to use alone, is gratuitously conceded for a certain time. If the time is not determined, but it must be restored at the will of the lender, it is called precarious. A law which obliges the borrower to make good a fortuitous case will bind conscience after the sentence of the judge.

IV. Mutuum and lending at interest. A mutuum is a real contract by which the dominion of some fungible thing is transferred from the lender to the borrower, with the obligation of restoring the same or a similar thing in species and goodness.

At the end of the mutuum, according as the matter or the price has rather been considered, a quantity of the same measure and quality, or a quantity of the same price, will have to be restored. From positive law, money of itself must be returned in the same numerical quantity in money legally admitted. The obligation of lending, which charity would otherwise impose, is often, but not always, excused by grave inconvenience.

A mutuum is gratuitous by its nature; nor, as such, does it contain a title of gaining. Usury, in the broad sense, is whatever beyond the principal must be paid to the creditor; in the strict sense it is an increase to be paid after individual intervals, especially if it is money. If usuries are sought, there is lending at interest.

It has always been lawful, by a prior agreement, to stipulate compensation of an extrinsic title which is truly present: ceasing gain, emerging damage, danger of the principal, indeed a long time through which the creditor was deprived of his things. But while the present condition of society perseveres, it is never unjust to lend monies under moderate interest, since today the possession itself of money has a value which is compensated by lending at interest. In the usual increase, the ordinary danger of the principal and ceasing gain are computed.

V. Census, in general, is a contract by which someone, the census-holder, acquires the right of receiving from the census-debtor an annual pension from another's thing or even from a person fruitfully working. It is distinguished as perpetual and temporary; of this kind is life-census, which is constituted for the life either of the census-holder or even of another person; redeemable and non-redeemable, according as, after a suitable sum has been paid, the census-debtor can remove the burden. Moreover it is constituted by gratuitous title or also by onerous title; in which case it becomes an aleatory contract.

VI. Purchase-sale. 1. It is a bilateral contract looking to the transfer of dominion of a thing for a price. Price, however, is called the value of a thing expressed in money. According as, by laws and cases, dominion is perfected by the consent itself or only after legitimate handing over or inscription has been completed, the contract will be consensual or real. This must be observed concerning other similar agreements.

2. In the essence of purchase-sale there is distinguished:

a) Consent, an element common to every contract, which here can be given simply or subordinated to the examination of the thing, or subject to the faculty of redeeming the thing after a certain time. In certain contracts positive laws permit rescission for the seller on account of grave lesion.

b) The thing. This must be handed over at the proper time and, of itself, at the expense of the buyer. - Its substantial faults, which the buyer is clearly ignorant of, must be manifested, and accidental faults concerning which an inquiry is made, and, from positive law, hidden faults which are called redhibitory. - Of itself a true and pure thing must be handed over, although someone can accommodate himself to the received usages of upright persons. - If, on account of a defect of the title transferred by the seller to the buyer, the latter is disturbed or suffers eviction, that eviction must of itself be made good by the seller.

c) A just price must be required and paid. In commutations there is distinguished a legal price which public authority can impose for preventing abuses, especially in necessary things, or on account of another necessity or utility of the common good, so that it must be observed in conscience; and a common price, which is defined by common estimation. That price is accustomed to admit the latitude of highest, middle, and lowest price; wherefore it is perfected by a conventional price, concerning which the parties agree.

The conventional becomes the only price when the legal and common price are lacking, either because there is no common value of the thing, or because both parties, conscious of their ignorance, have wished to enter the risk concerning the true price, or because the party who was unwilling to sell the thing has added to the just price a reasonable price of affection.

Besides causes which change common estimation itself, other special causes permit things to be bought at a cheaper price when they are less useful to the buyer or are bought together in great quantity; while a greater price can be required by the seller either on account of delayed payment, or on account of greater labor, for example of selling in small quantities, or on account of a peculiar privation, about which the buyer is made more certain. The special utility of the buyer does not affect the price of itself; yet it can bring about, if it is fruitful, that the seller, with the price increased, obtains a certain partnership in gain.

Thus far concerning the price of commutation, which is paid for a thing, and must be distinguished from a price which is measured not according to the value of the thing but according to another title, such as sustenance. This price is given on account of or because of something else, yet without comparison between thing and thing. The case is had when a person performs a work socially useful which by its nature transcends the order of money. Thus the physician who procures health, the advocate and magistrate who procure justice; thus also notaries who add public faith to acts.

Their stipends are designated by the special name of honoraria, and are not to be thrust down to salary without a certain materialistic abuse. Often a legal price is established for these.

d) In selling names of private credit, one must beware lest you require a price for a title which you know to be of no value.

e) Someone can enjoy a legal monopoly so that he may increase the price in a reasonable way; but in private monopolies by various arts, the highest price otherwise just cannot be exceeded.

To monopoly, which we do not think to be natural but opportunely conceded by law, we refer the exclusive right of an author or inventor to care for the publication of a work, the construction of an invented machine, etc.; nevertheless the author has a natural right to reputation concerning his own work.

f) In auction under the spear, which of itself would have to be governed by the rules of an aleatory agreement, various arts, otherwise to be condemned, can be tolerated by custom for obtaining a greater or lesser price. Nevertheless the thing must be handed over to the buyer; the price offered must be paid: the one bidding must have the faculty and will of paying; it is unlawful to turn bidders away by fraud or fear.

Brokers are to observe the laws and usages of upright persons and to be content with a moderate wage.

VII. 1. Exchange is a bilateral contract looking to the transfer of a thing for a thing into dominion. It is consensual, if by mutual promise; real, if it is perfected only by handing over of the thing. Laws must be consulted.

2. Money-changing is an exchange of monies, with some profit for the money-changer. It is distinguished as manual or small, local or trajectitious or by letters, and temporal, if present money is given for another to be paid later in the same or another place. By this reason merchants are accustomed to obtain anticipated payments, with the increase deducted. Moreover any money can be paid which is in fact accustomed to be accepted, but not money properly false, although often damage is not established.

VIII. Lease-hire, which is akin to sale, looks to the utility of a thing or of personal work to be ceded to another for a price, for a certain time. According to the various positive law it can be consensual or real.

Lease of things is distinguished, which, conceding the utility of things, follows the rules of sale, and lease of another's action, which, if it is regarded terminatively, becomes lease of work; but if in itself, is lease of services.

By lease-hire of work, a work to be completed for a certain price is undertaken by him who for that reason is called the hirer of the work. And he ought of himself, within the defined time, to complete the work for the accepted price. Nevertheless extraordinary expenses, and, as it seems, involuntary error of calculation, are to be compensated to him. - By lease-hire of services, the services themselves are leased to the hirer, who, as the minimum just price, ought of himself to pay the workman what, not hired, he would commonly gain for himself. But Providence has so ordered things that, in a time not calamitous, a strong workman, by his own work, could contribute to an ordinary family, i. e. such as would commonly exist by observing the moral laws, whence, with at least a reasonable supplement from the wife and older children and from thrift added, it would be decently supported. Therefore this wage, excepting the particular causes already noted in the contract of sale, will have to be paid as minimum, we do not say as already fully just.

Supplementary monies for those who must support numerous offspring are not owed of themselves from commutative justice. But the social necessity of protecting fathers of families can bring it about that public authority creates a true title of justice for exacting them.

All special burdens imposed on workmen must be compensated by a corresponding increase of recompense.

Today, however, the reason of some partnership is often mixed with lease-hire either of things or of services. This, in the contract of lease of services, is greatly to be desired and commended.

IX. Partnership is a contract looking to communion of a thing or work, and communion of use or especially of gain perceived from it. It is distinguished, from scope, as universal or particular; from end, as mercantile, directed to acts of business, or civil, directed to another economic utility. What is joined together for an end of a superior order often assumes another name, for example association. - The equality of justice here is defined by geometric proportion between contributions and profits. Moreover a leonine partnership is unjust and of itself null.

X. 1. Mandate is a consensual contract by which something to be done is committed to another who undertakes it. It is of itself gratuitous, and can always be revoked.

Procuration, even without a contract, gives to another the faculty of doing something for another.

Mandate neither includes nor excludes a wage on account of work to be performed.

2. Management of affairs is, as it were, a presumed mandate, for doing useful work for another who is absent or impeded. By the law of nature the owner of the affair managed ought to compensate at least necessary or useful expenses. Positive laws must besides be consulted.

Ratification, by which someone approves what another has done for him, is equivalent to mandate.

XI. Deposit and sequestration. Deposit is a real contract by which something to be kept is handed over, so that it may be returned whole. It is called irregular if the depositary can consume the thing. A deposit which from circumstance the owner is compelled to make is called miserable. For this deposit, as for the deposits of travelers with innkeepers, the burden of proof is lightened. The depositary ought to abstain from illicit use of the thing deposited.

Sequestration is the deposit of a litigious thing with a custodian who is called a sequestrator. - The burden of keeping a deposit can be compensated by money.

XII. Insurance is an aleatory contract by which someone, for a certain price, obliges himself to make good to another certain fortuitous cases or cases of prevailing force.

Life insurance obliges the insurer to give, for some annual payments, a determined sum, if a definite person dies or reaches such an age, or even in either case.

In these agreements also justice requires an uncertain event, or certainly one unknown to the parties, and a just price; and one must beware of various frauds. Which are unjust must be gathered from the clauses of the contract and received usages.

On account of the multitude and uncertain person of those who have suffered damage, there is one who thinks that in general what must be paid for damage inflicted on the insuring society can be given to the poor. The Sacred Penitentiary, however, opposes this opinion.

XIII. 1. Wagering is a contract by which two or more, contending among themselves about the truth or event of some matter, mutually promise something to one another so that it may become his who has attained the truth. Justice of itself requires a doubtful event and an equal opportunity of conjecture, or compensation for inequality.

2. Game is a contract by which players agree among themselves that what has been deposited in the middle shall yield to the winner. It is distinguished as aleatory, industrious, mixed. Justice requires that it be entered into freely, that equality be preserved, and that unlawful frauds be absent.

Easily, when great sums are exposed, this contract, of itself lawful, is corrupted by various vices. Open prodigality of the one exposing probably makes the game null; certainly the game of those who are unwilling to obligate themselves, or who do not have whence to pay the money, is null. Civil laws must also be attended to.

Fictitious sales and purchases in Bourses are numbered among games.

Moreover, a Bourse is a market where goods are present only by samples or by titles.

A Bourse of goods and a Bourse of securities are distinguished. Besides true business dealings, several others are at least mixed with game. Especially to be attended to are markets for a day, whether simple or under penitential earnest-money, which are called premiums (primes); and accessory contracts of sale-back, etc. To these are to be applied the norms concerning monopoly, concerning sale-back, concerning wagering and game.

XIV. 1. Transaction is a contract by which, by a mutual but onerous renunciation of the parties, a controversy concerning a doubtful right is ended. It supposes a doubtful right; and from the probability which the right had at the moment of agreement, the price must be estimated.

Contrary to an amicable composition, it carries with itself of itself no gratuitous cession of right; yet by accident it is often mixed with condonation. He alone can transact who is permitted to alienate the thing.

2. Compromise is an agreement by which, for preventing or ending a lawsuit, the parties commit the controversy to be settled to the judgment of one or more persons who are called arbiters or arbitrators.

3. To compositions must be ascribed agreements by which a debtor burdened with debt cedes his goods to creditors in order to avoid judicial pursuit, or by which a merchant, with partial payment promised, impedes bankruptcy or puts an end to it. These agreements of merchants are called concordats, and sometimes by the authority of a judge they are imposed at least on the lesser part of creditors. Ought the debtor, who afterwards enjoys prosperous affairs, to supply the remainder? This must be gathered from laws, from received morals. Of itself condonation is not presumed but must be demonstrated.

XV. Secondary contracts are pledge, hypothec, concerning which above, and suretyship, by which someone, in the place of the principal debtor, undertakes to fulfill an obligation which the latter does not fulfill. The surety is held by no greater obligation than the principal debtor. Remission made to the principal debtor frees the surety, but not conversely.

248. Preliminary Note. As is evident from what was said above in n. 39, a contract is the principal mode of acquiring dominion and draws its origin from the very nature of human society. For man, as a social animal, cannot acquire happiness without the help of other men. Hence no man can truly say that he is sufficient to himself and needs the aid of no one. But in the state of fallen nature, the precept of charity alone does not suffice for aid always to be granted in necessities; hence another means had to be added, namely contracts, by which the works and things of others yield to our utility under certain conditions. Thus, e.g., a poor man needs food; but since he does not have money, he must enter into a contract of labor in order to acquire money. Having obtained money, he enters into a contract of purchase and sale to procure food. Even the richest man needs a contract of purchase to procure for himself many necessities of life. Therefore the origin of contracts is to be derived from natural law itself, with the division of goods, however, presupposed. For if all goods were altogether common, contracts would now be superfluous, since their principal effect is to transfer dominion of some determinate thing from one man to another. Positive laws have further determined the diverse contracts and their conditions.

The tract on contracts is very long, since there are almost innumerable species of contracts and a very great number of statutes of positive laws which seem to oblige in conscience. But it is neither necessary nor possible for a confessor to know all those statutes enacted for the legitimacy of individual contracts. Therefore, studying brevity, we divide this whole tract into two chapters: 1. on contracts in general; 2. on the principal contracts in particular.

Preliminary Note. It would be excessively long to treat all contracts, which especially in our times have increased to a very great number. But this is not even necessary, because the confessor does not need to know all those contracts. Hence we shall treat only the more principal ones, and indeed: 1. gratuitous contracts; 2. onerous commutative contracts; 3. aleatory contracts.

Having explained gratuitous contracts and acts, we approach onerous contracts, and first onerous commutative contracts. There are very many onerous contracts, but a perfect knowledge of all of them is not so necessary for the confessor. The principal ones are purchase and sale, letting and hiring. We shall treat them specially, adding, however, by way of a scholion something concerning certain other onerous commutative contracts, or contracts of certain outcome.

We shall discuss: 1. contracts in general; - 2. gratuitous contracts; - 3. onerous contracts; - 4. aleatory contracts; - 5. subsidiary contracts.

St. Alphonsus, III, 707; ed. G., II, p. 174; Lugo, disp. 22; Lessius, l. 2, c. 17 ff.; Salmanticenses, de Contr., tr. 14, c. 1; Comitolus, de Contr. universe; Vermeersch, Quaest. de Just., q. 7; Marres, l. 3, n. 1-6; Berardi, Theol. mor., III, n. 505; Schwane, die Vertrage; Carriere, de Contr.; Wernz, Jus Decret., III, tit. 9, p. 228.

We must treat: 1. of the notion of contract; - 2. of the requisites for contracting; - 3. of the effect, or of the obligation, of contract.

1032. DEFINITION. A contract is the consent of two or more persons into the same agreed thing, with the mind of contracting an obligation.⁰¹

It is said: 1. consent, that is, a practical determination of the will; - 2. of two or more, because there is no obligation of justice or fidelity unless at least between two; - 3. into the same agreed thing, that is, concerning something to be given or done, which must necessarily be understood by all in the same way; - 4. with the mind of contracting an obligation; otherwise it would be a mere purpose.

In every contract three things are distinguished by jurists, namely essence, nature, and accidentals. To the essence belong those things without which the contract cannot exist: as, for example, in sale, the thing, the price, and consent. If one is lacking, there is no contract. If in place of a price, for example, another thing is given, it will not be a contract of sale, but of exchange. To the nature belong those things which, although not expressed, nevertheless from law, or usage, or equity, are understood to be comprehended in the contract, although they are not essential. Thus, for example, in sale, security against eviction can be excluded by a special agreement; but if no condition is expressed, the seller must furnish such security (cf. n. 1125). Finally, accidentals are called those things which can be joined to the contract without being considered added by law or by the nature of the thing; for example, such a delay in payment of the price and similar things.

1033. There is a twofold SOURCE from which the right of contracting emanates: a) from nature, that is, from the mutual need of men, which drives them to enter upon mutual obligations and grants them the power of entering upon these; b) from human law, which generally so establishes and governs the modes of contracting that citizens are neither impeded from the equitable exercise of right nor permitted gravely to abuse it to the destruction of others. But although the civil law, on account of the public good, can limit the natural right of private persons, as we said above, n. 838, yet it cannot violate it, nor validly establish anything against Ecclesiastical Law (cf. n. 149).

1034. DIVISION. A contract is: 1. Formal or express, or virtual or tacit. The former is that which is made by words, writings, or other signs directly manifesting consent. But the latter is that in which consent into the thing agreed upon indeed exists really, but is manifested only implicitly by some saying or deed.

Thus a physician exercising his art is considered to promise that he will do everything which his profession requires, according to the saying of Law: "you pledge the skill of the art." This contract is commonly called a quasi-contract.

2. Named or unnamed. A named contract has its proper name in Law, as purchase, lease, etc.; an unnamed contract lacks a proper name in Law. All unnamed contracts are reduced to four species, namely, I GIVE THAT YOU MAY GIVE; I GIVE THAT YOU MAY DO; I DO THAT YOU MAY GIVE; I DO THAT YOU MAY DO.

3. Unilateral or bilateral or synallagmatic. The former is made when one or more bind themselves toward one or more who are not bound, as in the contract of promise. The latter is had when one or more bind themselves toward one or more others likewise bound, as in various exchanges. It is a contract strictly taken. - Yet, even some gratuitous contracts are bilateral, for example deposit, loan for use.

A BILATERAL contract is commutatory or aleatory. It is commutatory if each contracting party is considered to give or accept something equivalent and certain, as in sale. It is called aleatory, or of fortune, if what is given or promised depends on an accidental event, as in games of dice.

4. Gratuitous or onerous. Gratuitous is that from which one party alone receives a benefit which the other party grants to him gratis, for example donation, loan for use. Onerous is that from which each party undertakes a burden for a benefit, for example sale, lease.

5. Principal or accessory. Principal is that which does not depend on another contract, as sale, exchange, donation, etc. Accessory or subsidiary is that which depends on another, and is ordered to its fuller security, as suretyship, pledge, and hypothec.

6. Solemn or simple, according as it requires special formalities of law, or is subject only to general dispositions. Simple is subdivided into written and verbal.

7. Naked or clothed. A naked contract is that whose natural obligation is not confirmed by Positive Law. - A clothed contract is that which, besides agreement, has the support of Law. This confers an action for demanding execution before tribunals; to the former also, in NEW Law, favor is generally conceded, provided it can be proved (see Lehmkuhl, I, n. 1241). Thus, for example, the Law protects the retention of what has been received.

8. Real or consensual. Real is that which, in its species, is not perfected except by delivery of the thing agreed upon, as is loan for use, loan for consumption, deposit, etc. Consensual is that which is completed by the consent alone of the contracting parties duly exhibited, as is lease.

9. Pure, or absolute, or non-pure, or conditioned, according as no condition or some condition is appended to it.

10. Firm or rescindable, according as its binding force at once becomes absolute, or can be constituted void by competent authority.

Four things are essentially required: 1. apt matter; - 2. a capable person; - 3. legitimate consent; - 4. a fitting form.

1035. DEFINITION. The matter of a contract is any possible, honest thing or action, estimable by a price, placed in civil commerce, proper to the contracting party, and determined.

1. Possible: for there is no obligation of impossibilities. Yet one can spontaneously promise a heroic action.

If the thing is possible only in part, the contract is valid for this part; because "the useful ought not to be vitiated by the useless" (Reg. 37, in 6). Except unless it was agreed in such a way that either the whole or nothing had to be furnished. But he who by his own fault causes the thing to become impossible is held to repair the damage. Cf. also n. 1057.

2. Honest: namely that it be opposed neither to laws nor to good morals; otherwise it would again be impossible. Yet it is enough that the thing be substantially honest; for a contract can be valid, although, on account of some accidental circumstance or on account of a mere prohibition, it is illicit; otherwise stipulations concerning labor performed on feast days would be invalid.

A difficulty can be moved concerning pacts about a shameful thing, or about things already owed from elsewhere. See below n. 1036.

3. Estimable by a price, that is, useful or reasonably pleasing; for "stipulations are made so that each one may acquire for himself that which is of interest to him."⁰³ Hence, agreements whose object is altogether useless or ridiculous are null.

a) The thing which becomes the object of a contract is not considered useful, or estimable by a price, if it only brings some advantage to the contracting party, otherwise showing the way, giving a loan for consumption could become the object of stipulation; - but it is considered useful if at the same time it gives advantage to another and imports something of burden on the part of the one furnishing. Thus a physician aiding a poor man from charity can stipulate a fee.

b) The hope of future things is held among all as estimable by a price, whence also things which are already in hope can constitute the object of a contract. Yet exception is made for the hereditary succession of a person still living, concerning which every stipulation or pact, among diverse peoples, is of no force; and this by the best right, lest from it there be an occasion of desiring the death of another.⁰⁴

Note. In German Law, every onerous disposition concerning one's own future goods and the succession of another living person is declared void (§ 310, 312). Notwithstanding this, religious who make profession can draw up a testament concerning future goods.

4. Placed in civil commerce. Outside commerce are public roads, rivers, etc., and, in Roman Law, every sacred thing (n. 852, 4).

As concerns spiritual things or things annexed to the spiritual, see the things said n. 545 and 584 ff.

5. Proper to the contracting party, that is, existing under the ownership of him who hands it over; because no one can transfer more right to another than he himself has.

Hence the buyer of a stolen thing does not acquire ownership of it. See nevertheless what is established by positive law concerning the repeated sale of such an object (n. 939 ff.). A contract can also be made concerning a thing to be furnished by another, in this sense, that the contracting party promises that he will take care that the thing be furnished by another.

6. Determined, either in the individual, or in quantity and quality; otherwise the contract would be illusory: as if I were to promise someone, for example, whatever animal, or grain in general, I would satisfy the promise by giving a gnat, or one grain of wheat; which would be absurd.

1036. Questions. QUAER. 1. Whether pacts and contracts ABOUT A SHAMEFUL or ILLICIT THING, for example about bearing an unjust sentence, about committing homicide, fornication, theft, etc., induce an obligation?

Resp. 1. Before the perpetration of the work, it is certain that such pacts are null. For justice cannot oblige to the illicit. Hence, when the work has not yet been perpetrated, the promised price ought not to be paid by the one party, nor can it be accepted or retained by the other (III, 712; H. Ap., X, 123).

Yet if someone has accepted a gift given by way of allurement, without a pact of perpetrating a bad thing, he can retain it without injustice, even when consent has been denied. For then the donation must be held as wholly liberal, even though it was made from the intention of seducing the donee.

2. After the perpetration of the work, it is certain that prostitutes can, at least from Roman Law (l. 4, ff., de Condict. ob turp. caus.), demand and retain their infamous gain without injustice. Thus commonly the authors with St. Thomas (2. 2, q. 62, a. 5, ad 2). Whence the Sacred Penitentiary on 22 April 1822 decided thus for the internal forum: "A penitent woman is not to be compelled, but is to be exhorted, that she expend the price of prostitution, according to the judgment of a prudent confessor, for pious uses."

But for other illicit actions there is controversy. Some, among whom are Adrian, Medina, Collet, Gousset, Lyonnet, Carriere, deny both the obligation of paying the agreed price and the faculty of retaining a price already paid. The reason is that a bad action is not saleable, nor can a contract previously null become valid through the completion of the work. This opinion is probable. Others, with Lessius, Lugo, the Salmanticenses, Sanchez, Lehmkuhl, Vermeersch, hold the affirmative opinion, and hold it the more probable and common one. The reasons are: a) the general Rule presses: "when one of the contracting parties has placed his part, the other is held to place his own"; b) the bad work already placed, although it is not worthy of a price as bad, is nevertheless estimable and useful to one and burdensome to the other. Hence, from the fact that the other places this work, there arises as it were a new unnamed contract: I do that you may give; I do that you may do (cf. Lehmkuhl, I, n. 1249; Vind. Alph., P. III, q. 15).

In practice, because true probability stands on each side, favor must be given to the possessor, unless the sentence of a judge has established otherwise, or a special circumstance has acceded. - Yet by no pact is the stuprator freed from his obligation who, under the promise of marriage, violated a virgin, as we have already said n. 959.

QUAER. 2. Whether the matter of an onerous contract can be a thing ALREADY OWED from elsewhere?

Resp. 1. Negatively, if it is already owed by title of justice. Thus, for example, a pact of doing or giving something for bearing a just sentence, for restoring a thing deposited, loaned for use, found, for abstaining from theft, detraction, etc., is of no force; for the other has a right to those things independently of every burden or price imposed on himself, and therefore a price already paid must be restored to him (IV, 216).

Yet it is probable that the whole price of some work can be accepted from several, if it thus profits each one as if it were being done for the sake of each one. Thus, for example, if Titius has hired you so that you may undertake a journey for the sake of some business, you will also be able to be hired by Peter, for transacting his business, for the same journey, provided the later mandate does not harm the prior one (III, 862).

2. Affirmatively, more probably, if it is owed only from charity, religion, or a similar virtue; for then from the onerous contract there arises a strict right which did not exist previously. Thus a rich man who was held from charity to rent a house to a poor man gratis does not sin against justice, although he injures charity, if he exacts the price of lease. Likewise, if someone accepts money for fasting in the time of Lent, he can retain it without injustice and without other sin. Cf. III, 713; IV, 216; Lehmkuhl, I, n. 1247.

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.

The consent of contracting parties is the soul of the contract. We shall treat of it on a twofold point, by establishing: 1. what are the qualities of legitimate consent; - 2. what vices are opposed to it.

1044. PRINCIPLE. The consent of contracting parties must be: 1. internal; - 2. mutual; - 3. externally manifested; - 4. free and deliberate.

1. Internal; because the obligation of contract arises from the will alone of the contracting parties, whether explicit or implicit. Thus commonly, against Vasquez and some others. Cf. Lehmkuhl, I, n. 1256.

Hence: if someone fictitiously consents, that is, without the mind of contracting, he is not held in conscience by reason of the contract, which is null; but by reason of deception he is held to make the other unharmed, and if another means of repairing the injury does not offer itself, he must give true consent and stand by the contract. The same must more probably be said if someone, knowing the obligation of contract, indeed consents with the mind of contracting, but without the mind of binding himself. The reason is that the condition appended, contrary to the substance of the contract, invalidates the contract. But a contract does not become invalid if it is entered upon without the mind of fulfilling it (III, 172, 709, 710; VI, 833; H. Ap., X, 122).

In the external forum, true consent is always supposed until the contrary has been certainly proved; because that which ought to have been done by right is presumed to have been done. Likewise, no one is held to believe him who asserts that he did not consent interiorly, unless it is evident, for example from circumstances, that the consent was jocular.

2. Mutual, even in a gratuitous contract. For, as Lugo says (disp. 23, n. 39): "although someone by his will alone can lose ownership or possession of his own thing, nevertheless by his will alone he cannot make his thing belong to another; for to this is also required the internal consent of him to whom it ought to belong," according to that saying of Law: A benefit is not given to one unwilling (l. 69, ff., de Reg. Jur.).

3. Externally manifested, namely in such a way that the consent of one can be known and accepted by the other, and the acceptance, on the part of the second, can become known; for it is an act of human commerce, which cannot be such unless it is externally manifested. Hence, if I offer to you a thing for sale for one hundred lire, and you accept, the contract is perfected, not when you consent internally, but when your acceptance comes forth externally through some sign.

On these things let the following be noted: a) Silence is reputed as consent if the circumstances are such as to admit no reasonable doubt (cf. Austrian Code, 863). This regularly happens if the matter is favorable to the silent person, for example in donation; for then the Rule of Law has force: "He who is silent seems to consent."

b) In a bilateral contract it is not enough if the consent of one becomes known to the other in any manner whatever, but it is required that the offering of consent be manifested by way of denunciation, that is, that it be intimated from the intention and will of the one placing it; otherwise it is considered a mere internal purpose (Vermeersch, n. 316). - Yet it is not required that the consent of both contracting parties be emitted at the same time; but it suffices that the consent of one given is not revoked before the consent of the other is joined to it.

c) If a contract is made through a procurator, the contract is perfected as soon as the procurator accepts, even though the one in whose name he acts has not yet accepted; because the acceptance of the procurator is morally the acceptance of the contracting party.

d) With respect to contracts carried out by letters, it is disputed at what precise time they are perfected, whether namely at that moment at which the other, for example by writing a response or letter, accepts the proposition of the other offering, or rather at that moment at which the offerer knows the other's acceptance. - Considering the law of nature alone, the contract seems to be perfected as soon as the other accepts, unless law or custom, or the express will of the one proposing, has disposed otherwise. For then the consent of two persons into the same agreed thing is present (Lehmkuhl, I, n. 1258; Carriere, I, 34, 4; Crolly, II, 104). Yet the other opinion is more conformable to more recent jurisprudence, especially in FRANCE and in ITALY. Cf. Camillo Re, Tratt. sulla compra e vendita, n. 10. In AUSTRIA (n. 862), in SPAIN (n. 1262), in GERMANY (n. 147-156 and Commercial Code, 321), and in several regions, practical rules concerning this matter are had in the Code itself.

4. Free and fully deliberate, in such a way that the contracting party, even if it is a question of light matter, not only is master of himself, but acts with that advertence which is required for grave sin. Otherwise it would be only an imperfect will and therefore an imperfect act, which could not produce a perfect obligation. Hence the half-drunk, the half-foolish do not enter a valid contract, so much less because here it is a question of a burden to be imposed on himself. See what we said about vow n. 625.

1045. The vices opposed to consent are: 1. error and deceit; - 2. force and fear. We shall speak of deceit together with error, and of force with fear.

Things to be noted beforehand. Error and ignorance here are equated (cf. the things said n. 287).

ERROR is substantial or accidental, according as it is concerned with the substance of the contract or something accidental to it. The substance of a contract is that about which the intention of the contracting party is concerned primarily and principally, and it can be either the very substance of the thing, for example donation or sale, or also its quality, for example if you buy a thing precisely because it was in the use of some celebrated man, or also both at once. Likewise, the person of the contracting party can pertain to the substance of the contract, if consideration of him is the principal motive of your consent, as generally happens in gratuitous contracts (Crolly, II, 121).

DECEIT, in the present matter, is a machination or cunning employed by one contracting party to deceive the other (l. 1, ff., de Dolo malo).

1046. PRINCIPLES. I. Error concerning the substance of a contract irritates the contract by the law of nature. And this, even if the error did not give cause to the contract, that is, even if, when the error had been made manifest, the party would still have contracted. It is the common opinion. The reason is that, when cognition of the object is lacking, the required consent is lacking (III, 714; cf. Lugo, disp. 23, s. 6; Spanish Code, 1266).

Hence: 1. A contract is null if you have erred concerning the nature of the agreement, for example if you enter upon a contract which you think is a loan for use, when it is a lease; or concerning the substance of the thing, for example if you sell vinegar for wine, glass for a gem.

2. A contract is null if the error is concerning a quality which redounds into substance, either because you intended that quality solely or primarily, for example if you buy a painting because you judge it the work of a most celebrated painter; or because you openly consented under the condition "if such a circumstance is present"; for, when the appended condition is lacking, the contract does not subsist. But it must be noted that such a condition, which is called sine qua non, does not necessarily have to be expressed in a contract of good faith; it is discerned as placed implicitly, either from the disposition of laws, or from the usage of places, or from the estimation of men, or from the nature of the contract, or from the end to which the thing or action about which the contract is made is manifestly deputed, for example if you say that you want wine for a sick person, for the sacrifice of Mass, cloth for a priestly vestment, etc. (Gousset, I, 735).

3. A contract is null if you have erred concerning the person with a view to whom you principally acted. Hence a donation is null which you made to Paul from error, intending to make it to Peter; or which you made to John because you erroneously believed that he was joined to you by consanguinity; or which you made to rich Titus, whom you thought poor. Likewise, a sale is void which you made to Caius, expressly intending to make it to Sylvius, and to him alone (III, 734, 736; cf. Austrian Code, 872, 873; German, 119, 120).

1047. II. Accidental error irritates no contract, but renders a gratuitous contract rescindable if it was its cause; and similarly an onerous contract of which it was the cause, if it was caused by the deceit of the other party, or if it gave occasion to enormous lesion. This assertion must be explained by parts.

1. Accidental error irritates no contract: because a contract entered upon from such error is not invalid, neither by Positive Law, which does not admit this cause of nullity, nor by Natural Law, since for validating the contract a voluntary mind with respect to the substance suffices, although it is involuntary with respect to the accidents. Wherefore, if you buy wine which you estimate to be four years old, while it is two years old, the contract is valid; yet, if the wine is not of the same value, the contract must be reduced to equality.

2. It renders a gratuitous contract rescindable if it was its CAUSE. For this contract requires greater spontaneity; indeed there are Doctors who hold such a contract to be altogether void. - Hence, a donation made to a poor man because he is reputed very upright is valid, although it can be irritated by the donor (III, 737; Lehmkuhl, I, n. 1262; Gopfert, I, n. 95, 3).

3. It renders an onerous contract, of which it was the cause, rescindable if it was caused BY THE DECEIT OF THE OTHER contracting party: because the deceiver is held to remove the deceit, and insofar as he can, to replace the deceived person in that state in which he would be if he had not been deceived. But this demands that the deceived person can, if he wishes, rescind the contract (cf. Spanish Code, 1270). But if the error was caused by the deceit of some third party, the contract does not become rescindable for that reason. Except if the contracting party himself was participant in this third party's deceit (III, 715).

4. It renders an onerous contract rescindable if it gave occasion TO ENORMOUS LESION. Positive Law commonly admits this cause of rescission,⁰¹ provided the lesion is beyond half the value of the thing. But since the law in some places favors the seller, and in other places the buyer, one must stand by the dispositions of Law.⁰² But if the lesion was not so great as to grant the faculty of rescinding, the contract must be reduced to equality. See Lehmkuhl, l. c.

1048. Absolute force takes away every voluntary, and therefore absolutely irritates a contract (cf. n. 286). Force that is not absolute is not distinguished from fear. Hence, only fear must be treated.

FEAR is: 1. grave or light; - 2. induced by an intrinsic or extrinsic cause, necessary or free, just or unjust; - 3. instilled to extort consent, or for other ends (cf. n. 285).

From Natural Law it is plainly the same whether either the one who has suffered fear, or another person most closely joined to him, ought to be affected by the evil with which the one instilling fear threatens.

From Positive Law, this has force only concerning descendants, ascendants, and spouses, who are equated with blood relatives.⁰³

1049. PRINCIPLES. I. Fear justly instilled does not invalidate a contract nor render it rescindable. It does not invalidate, because fear not taking away reason, as is supposed here, does not take away but only diminishes the voluntary; it does not render rescindable, because no injury is inflicted on the contracting party. - Hence, he who, from fear lest a crime be brought before the judge, marries the girl whom he deflowered under promise of marriage, contracts validly.

1050. • II. Light fear never invalidates a contract, nor, more probably, renders an onerous contract rescindable, excepting nevertheless betrothals. The reason for the first: such fear does not impede true and free consent into the contract. The reason for the second: relatively light fear is presumed to have given occasion rather than cause to the contract, since the contracting party was only lightly unwilling (III, 718; H. Ap., X, 125). Hence a civil action is never conceded to such a contracting party, according to that saying of Law: "There is no just excuse of vain fear" (l. 184, ff., de Reg. Jur.).

It is said 1. It does not render an onerous contract rescindable; for according to the more common opinion it renders a gratuitous contract rescindable, on account of the greatest spontaneity which such a contract requires. - 2. Excepting betrothals, which can be rescinded even when contracted through light fear, from the greatest liberty which betrothals demand for themselves (cf. what must be said n. 1950).

There are nevertheless authors who probably affirm that all contracts, except marriage and religious profession, entered upon from light fear are rescindable at the will of the one who suffered fear (III, 718).

1051. III. Grave fear, unjustly instilled by the other party, does not invalidate a contract, but renders it rescindable at the will of the vexed person. Thus the very common and more probable opinion.

It is said 1. Grave fear, unjustly instilled by the other party, and indeed even if it was not instilled in order to extort consent (Lugo, disp. 22, n. 177).

2. It does not irritate the contract, since this does not obtain either by Natural Law or by Positive Law. "Not by Natural Law, because fear does not simply take away the voluntary; not by Positive Law, since in civil Law judges are commanded to rescind such contracts; therefore, of itself, the law holds them as valid" (III, 716).⁰⁴

There are excepted some contracts, or acts, which CANON Law declares void by the fact itself if they are made from grave fear. Such are: marriage, and probably also betrothals; religious profession; vow; election of a prelate; promise or handing over of ecclesiastical things; absolution from censures; renunciation of benefices (III, l. c., Quaer. 1). - Also excepted is a gratuitous contract, if fear takes away every liberality, and consent is furnished only for avoiding unjust vexation. In which case, there is had rather an unnamed contract, I give that you may do, which is, of itself, void on account of defect of just matter.

3. It renders the contract rescindable. The reason: the one instilling fear is held to repair the injury done to the other; and this cannot be done unless the one who suffered fear is replaced in the former state of liberty. - Hence it is said in Canon Law: "the things which are done by fear and force must be recalled into voidness," and in Roman Law: "sales, donations, which have been extorted by power, we command to be weakened" (l. ult., c. 2, de his quae vi).

But rescission can be made by private authority; and this even if the thing has come to a third possessor of good faith. But if the other refuses, the one who suffered fear can secretly compensate himself (III, 717, 719).

Note. A contract entered upon from grave unjust fear is very often invalid from the beginning; because in the one who suffers fear, internal consent is lacking. But if that internal consent was present, let the conclusion which we have stated stand.

1052. IT IS ASKED. What if the fear was instilled not by the other party, but BY A THIRD PARTY?

Resp. If it was not instilled in order to extort consent, the contract is altogether firm; because then fear must be called the occasion rather than the cause of the contract. Wherefore, he who, attacked by a robber, calls others to his aid, is held to pay the promises made to those assisting. If nevertheless the sum were enormous, it would have to be diminished according to the judgment of a prudent man.

But if it was instilled to extort consent, there is controversy. - The first probable opinion holds that the contract is rescindable; because by reason of fear, even that instilled by a third party, perfectly free consent, which is required for firmly contracting, is lacking. Thus various Codes decree.⁰⁵ The second opinion, also probable, denies it, because since neither party has made an injury, there is, from the nature of the thing, no reason why the contract be void, and why it can be rescinded at the will of one, with the other unwilling.⁰⁶ In practice, favor must be given to the possessor, until the sentence of a judge decrees.

1053. By EXTERNAL FORM is here understood the external manifestation of mutual consent. By the law of nature indeed, no determined mode and no peculiar conditions are required. But Positive Law commands that certain FORMALITIES sometimes be observed, and of these some are accidental, while others are essential. Accidental formalities are those whose omission does not weaken the contract, but obliges only to paying a penalty, or also deprives the contracting parties of civil action. Essential formalities are those whose omission invalidates the contract in the external forum.

In modern Law, the form required for marriage, testament, donation, and hypothec is commonly held as essential. What is prescribed for the other contracts is held as accidental, required for proof in the external forum. Cf. German Code, 125-129; Austrian, 883-886.

1054. IT IS ASKED. Whether contracts which are declared null by civil laws, when they lack ESSENTIAL formalities, are already invalid also in the forum of conscience before the sentence of a judge, or only rescindable?

Resp. There is controversy. Certain contracts are called invalid by some authors, concerning which the intention of the legislator, thus irritating, seems sufficiently declared from the context of the words.⁰⁷ Yet the more common and more probable opinion holds that they must be considered, not invalid by full right before the sentence of a judge, but only rescindable. The reason is that the irritating force of the law is not sufficiently established, as is clear from the various opinions of jurists.⁰⁸

With the controversy standing, favor must be given to the possessor until it is established otherwise by a judge.

Note. What we have said concerning defect of form commonly has force for other defects which by Positive Law irritate or weaken some contract licit and valid by its nature. Recall the things said n. 186 and 188. See also n. 1068, 1081, etc.

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).

It must be treated 1° concerning contracts in general; 2° concerning contracts in species.

828. Definition. - A contract is an agreement through which one or several obligate themselves toward one or several others to give, do, or omit something.

Division. - A contract is chiefly distinguished:

1° Into unilateral (unilateral) or bilateral (bilateral). The former is made when one or several obligate themselves toward one or several not obligated, as in the contract of gratuitous promise. The latter is had when one or several obligate themselves toward one or several likewise obligated, as in exchanges.

2° Gratuitous or of beneficence, which is also called imperfect; or onerous, which is also called perfect. It is also called synallagmatic from the Greek words syn (with) and allasso (I exchange). A gratuitous contract is called one from which only one party receives an advantage (whether mutual obligation arises from it or not). But onerous is one from which each party receives an advantage. Therefore this division does not fall back into the preceding. For there are given gratuitous contracts from which mutual obligation is given, as loan for use, deposit, loan for consumption, etc.

But an onerous contract is again subdivided into commutative and aleatory. It is commutative if one contracting party gives a thing in one species and the other gives an equivalent thing or one of a diverse species. It is aleatory (contingent) if one gives a thing, but the other contracting party gives not a thing, but the probable hope of obtaining some thing; which hope, since it can fail, causes a contract of this kind to present the likeness of a game of chance.

3° Solemn (contract by deed or specialty) or simple (simple contract), according as it requires special formalities of law or not. Simple is subdivided into written (written) and verbal (verbal). (v) p. 475.

4° Named or unnamed according as it has a proper name, as for example sale, or lacks a proper name, for example I give that you may give, I do that you may do, etc. (p) p. 475.

5° Naked or clothed. A naked contract is called one from which in the external forum action is not given. Such is that which lacks the form required by law, but not precisely that in which the form prescribed by law has indeed been observed, but which cannot be proved in the civil forum because of defect of witnesses or instruments, and from which on account of this cause action is not given by accident. A clothed contract is one which besides the obligation of conscience produces an action in the civil forum.¹

6° Formal or express (express), or virtual or tacit (implied). The former is one which is made by words, writings, or other signs explicitly manifesting consent. But the latter is one whose consent into the agreed thing does indeed exist really, but is manifested only implicitly by some saying or deed. Thus a physician exercising his art is judged to promise that he will do that which his profession requires. This contract is also commonly called a quasi-contract.

7° Real, which is not perfected in its species except by the handing over of the thing concerning which agreement is made, of which kind are pledge, loan for use, deposit, etc.; and consensual, which is completed by the consent alone of the contracting parties duly exhibited, of which kind is lease.

8° Pure or non-pure. Pure is so called when it is simple and burdened by no adjunct; non-pure, when it has something adjoined.

9° Of good faith and of strict right. That of good faith is one in which the judge can moderate many things from the equitable and good, namely those things which according to good faith are judged to be contained in the contract; such are purchase, lease, hire, management of affairs, mandate, deposit, pledge, partnership. Of strict right is that in which the judge is altogether bound to the words of the contracting parties, yet in such a way that they serve their manifested intention; such are testament, loan for consumption, donation. This pertains to the forum which they call "court at law"; but the former to the forum which is called "court of equity or chancery." In the forum of conscience equity is especially regarded.

10° In action (in action or executory), if it must afterward be committed to execution; or in possession (in possession or executed), if it is already committed to execution. "If, for instance, one person sells and delivers goods to another for a price paid, the agreement is executed, and becomes complete and absolute; but if the vendor agrees to sell and deliver at a future time and for a stipulated price, and the other party agrees to accept and pay, the contract is executory, and rests in action merely."¹ From this contract there is given a right to the thing and a personal action; from that one, a right in the thing and a real action.

829. • In every contract three things are to be distinguished, namely essence, nature, and accidentals. 1° To the essence pertain those things without which the contract cannot exist. Thus, for example, in the contract of sale three essentials are given, namely thing, price, and consent. If one is lacking, there is no contract. If in place of price, for example, another thing is given, it will no longer be a contract of sale, but of exchange. 2° To the nature pertain those things which, although not expressed, are nevertheless understood to be comprehended in the contract from law, or custom, or equity, although they are not essential; for example security furnished against eviction of the thing sold, which could be excluded by the contracting parties without the sale being invalid. But if the condition is not expressed, the seller ought to furnish security for the thing sold. 3° Accidentals are called those things which can be adjoined to a special contract by agreement, without being judged adjoined by law or by the nature of the thing; for example such a delay of price, or other things of this kind. - Bouvier, etc.

These things having been premised, it occurs to treat 1° concerning the requisites for contracting; 2° concerning the obligation of contract; 3° concerning the modifications of contracts.

Three things are required: 1° apt matter; 2° capable subject; 3° legitimate consent.

830. • The matter of contract generally is things and deeds, or all those things which can fall under man's dominion, and concerning which the contracting parties have free administration.

The matter of contract ought to enjoy these conditions, namely it ought to be possible, existing, honorable, proper to the contracting party, certain, estimable by price.

1° Possible, both physically and morally; because no one can be obligated to the impossible. Therefore no one can be obligated to avoid fortuitous events, since this is impossible. Hence if someone takes them upon himself, he obligates himself only to repair damages coming from them.

2° Existing, either in reality or at least in certain hope, or probably going to exist; otherwise no right could be had in it, as being something estimable by no price.

3° Honorable and licit in itself, that is, prohibited by no right; because no obligation can be given to a dishonorable and prohibited thing. But for the validity of a contract it is enough that the matter be substantially honorable; for a contract can be valid, although illicit on account of some accidental circumstance.

4° Proper to the contracting party; for no one can transfer to another a right which he himself does not have. Hence the sale of another's thing is invalid, at least as to the transfer of the thing, although not always as to the transfer of the price.

5° Certain and determined, whether in individual, or in quantity and quality; otherwise the contract would be illusory, as if I promised someone, for example, any animal whatever, or grain in general. For I would satisfy the promise by giving a gnat or one grain of wheat, which would be absurd.

831. Questions. - Query 1° Can you accept a price for your action already owed to someone from justice, if the same action can profit another, with the right of the prior one to whom it is owed uninjured?

Resp. Affirmatively. The reason is that you do not injure the right of the former, with whom you had contracted, and you furnish yourself useful to the latter. Thus, for example, if Titius has hired you to go to a certain place for the sake of transacting some business, you can also be hired by Peter to make that journey for transacting a new business, provided the later mandate does not harm the former. See L. IV. 862.

Query 2° Can a price be accepted for a thing owed, not indeed from justice, but from another virtue, for example if you accept money to fast in the time of Lent?

Resp. Affirmatively, at least more probably, because that price then by donation acquires a right which it previously lacked.¹ Nevertheless, it is supposed that the action or thing to which the donee is bound is estimable by price; otherwise the contract would be invalid. Hence he would be bound to restitution who exacted money for showing the way to a man passing by, when he can show it without any labor or loss of time; for that action is not estimable by price.

Query 3° Is the contract valid if the matter is only partly possible?

Resp. Affirmatively, if the thing is divisible in itself and contract was made concerning it divisibly; otherwise, if it is indivisible or agreement was made concerning it indivisibly. Hence, for example, if you bought 100 measures of wheat, so that the contract is not perfect unless the thing has been handed over, and 50 perish, the contract still holds for the remaining 50. But if you promised a watch, and learn that you have only a partial right in it, your promise will be null.

832. • Query 4° Can a merely spiritual thing be the object of a contract, whether gratuitous or onerous?

Resp. to the 1st. Affirmatively. For nothing in natural right stands in the way, since agreements of this kind have nothing disordered; nor does divine right, since God has permitted, indeed commanded, the gratuitous communication of spiritual things. Thus from the obligation of fidelity you can promise prayers, Masses, Relics, etc.

Resp. to the 2nd. 1° Affirmatively, if the thing is spiritual on each side and no prohibition of the Church stands in the way, because then no simony can be present in the exchange, since there is no comparison of a spiritual thing with a temporal one.

2° Negatively, however, if a merely spiritual thing is on one side, but a temporal one on the other; because no comparison between the spiritual and the temporal can be given, as is established from what was said concerning Simony, n. 352 and following.

833. • Query 5° Can the matter of an onerous contract be a temporal thing annexed to a spiritual thing?

Resp. 1° Affirmatively, if it is annexed antecedently, the prohibition of the Church in particular cases being set aside, provided nevertheless that the price is not increased because of the spiritual thing annexed. - See what was said concerning Simony, ibid.

Resp. 2° Negatively, if it is annexed consequently, at least from ecclesiastical Law. But this question chiefly regards benefices.

Resp. 3° But if it is annexed concomitantly, distinguish: 1° Negatively, if it is annexed intrinsically and necessarily, because then the temporal thing has no value independently from the sacred thing, such as is the labor of the priest in celebrating, absolving, etc. - 2° Affirmatively, however, if it is annexed extrinsically, as was said concerning Simony, ibid.

834. • Query 6° Must a thing received from a base contract always be restored?

Resp. 1° Before the placing of the base work, affirmatively; because the dominion of this thing has not been validly transferred. - Thus all.

Resp. 2° After the placing of the work, it is controverted. A twofold probable opinion is given.

The 1st Opinion, common and more probable to S. Alph.,¹ says that the price can be accepted and retained, indeed also must be given from justice. The reason is 1° because there intervenes there a twofold contract: one absolute, namely concerning a base work to be placed for a price, and this is void; the other conditioned, concerning the handing over of the price if the base work has been placed, and this, when the condition has been fulfilled, becomes valid. For once the work is placed, there now arises the contract, I give that you may give, whose nature demands that always, as often as one contracting party has furnished his own part, the other be bound to fulfill his own if he can do so licitly. 2° Because although the base action, insofar as illicit, is worthy of no price, nevertheless, insofar as laborious, ignominious, dangerous to the agent, it has a price.

The 2nd Opinion, sufficiently probable, denies it, from Rule of Law 18 in the Sixth: What does not stand by right from the beginning is not confirmed by the passage of time.² Our law agrees.³

Therefore for the internal forum the possessor must be favored. But according to the patrons of each opinion, and Resp. S. Poen. (Scav. T. II. n. 393), the price of prostitution can be retained.

Query 7° Whether, if a man has given something to a woman in order to seduce her, can she, after consent has been denied, retain the thing?

Resp. Affirmatively, because no agreement concerning sin to be perpetrated intervened, and therefore the donation must be held altogether liberal, since the woman promised absolutely nothing on her part.² Yet the one accepting will with difficulty be excused from the sin of scandal and cooperation,³ if she knows with what mind the donation is made.

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

1° its qualities; 2° the opposed defects.

845. • Consent ought to be external, internal, mutual, free and deliberate.

1° External, that is, manifested, because it ought to be made known to the co-party; but it cannot be made known to the other party unless it comes forth exteriorly by some visible sign.

2° Internal, because the obligation of a contract arises from the will alone of the contracting party. - Thus commonly.

3° Mutual, because a contract is an agreement of two or several; hence, if it is onerous, cession and acceptance are required on both sides. If it is gratuitous, cession is required on one side and acceptance on the other.

4° Free and deliberate, so that the contracting party is not only master of himself, but also acts with that deliberation which is required for grave sin; otherwise the will would be imperfect, and therefore the act imperfect, which could not produce a perfect obligation.

846. Questions. - Query 1° Is a contract valid which has been entered without the mind of obligating oneself, or without the mind of fulfilling it?

Resp. to the 1st. More probably it is not valid, because the condition appended is contrary to the substance of the contract.¹

Resp. to the 2nd. The contract is valid. The reason is that the will not to fulfill can stand together with the will to obligate oneself.²

Query 2° Must the consent of each party be elicited simultaneously?

Resp. Negatively, because the consent of one once given, and not revoked, morally perseveres, so that, when the consent of the other accedes, the contract is at once perfected.

847. Resolutions. - 1° He who fictitiously consents to a contract is bound in the forum of conscience to render the deceived party unharmed, and, if no other means of repairing the injury is available, to furnish internal consent and to stand by the contract.³

But if the contract fictitiously entered has been committed to execution, no dominion has in fact been transferred. "Whence, by reason of the thing accepted, the deceived party must be held as a possessor of good faith, but the deceiver as a possessor of bad faith."

2° If I offer you my house for sale for $100, and you accept, the contract is perfected, not when you internally consent, but when your acceptance comes forth externally to me through some sign. But my consent is sufficiently intimated to you by the fact that I offer you my house for the stated price.

3° If you contract with me through a procurator, the contract is perfected when your procurator accepts, even though you have not yet accepted, because the acceptance of your procurator is morally yours.

4° Silence is regularly regarded as consent if the matter is favorable to the one silent. Hence Rule of Law 43 in the Sixth: He who is silent seems to consent.

5° If Paul says before John: I give $100 to Peter; and if John, unbidden, reports this to Peter, and the latter says: I accept; Paul is not judged obligated; because the intimation of the promise was not made to Peter by Paul's mandate, who moreover showed nothing else by the reported words except the mere purpose of giving.

The principal are error, fraud, force, and fear.

848. • Error in contracts can turn 1° about the substance of the thing, as if you buy copper for gold; 2° about the nature or species of the contract, for example, if you take a lease for a sale; 3° about the quality or accidents of the thing, as if a horse is slow while it is reputed swift; 4° about the person, for example, if someone should give to Peter, wishing to give to Paul; 5° about the motive, for example, if you should give something to Caius on account of poverty or piety, while he is rich or impious.

Yet error about quality, although accidental, can be the cause of the contract.

849. Principles. - I. Every error about the substance of the thing or the nature of the contract renders the contract null. The reason is that then there is no consent, which regards an altogether diverse thing.¹

II. Error about quality alone does not of itself invalidate a contract, at least if, with the error known, the contract nevertheless would have been entered. For consent wholly voluntary about the principal object of the agreement is had. But if, with the error known, the contract would not have been entered, it is controverted, as we shall say at once.

850. Questions. - Query 1° Does error about quality giving cause to the contract void the contract, whether onerous or gratuitous?

Resp. 1° More probably negatively as to onerous contracts, because such an error impedes neither knowledge nor consent as to the substance of the thing. But otherwise scarcely any contract would be valid, which would cede to the subversion of human commerce. Except, 1° if the quality is expressly intended as a condition without which not, because then it passes into the substance of the thing; 2° if the error was invincible and the thing is still intact; but if the thing is no longer intact, or has already been fulfilled by the other party, you can rescind the contract in conscience, if the matter is of great moment, even though the other party was not conscious of the error.²

Resp. 2° As to gratuitous contracts, more probably affirmatively. The reason is that such contracts by their nature require a full voluntary and complete spontaneity; but this was plainly lacking when the cause moving to donate is supposed to be absent. - Thus commonly against some, who moreover admit that contracts of this kind are rescindible at the will of the donor thus deceived. See St. Alphonsus.¹

Query 2° Does error about the person invalidate a contract?

Resp. 1° Negatively, speaking generally, as to onerous contracts, because in these an error of this kind is merely accidental; and it is indeed of little interest both to the seller to whom he sells the thing, provided he receives a suitable price, and to the buyer from whom he buys, if the thing is suitable to him. The contract of marriage must be excepted, in which the consent affects the very person, who becomes at once both the contracting party and the object of the contract itself.

Resp. 2° Affirmatively, for the most part, as to gratuitous contracts, because in these the person of the donee is usually specially intended by the donor. Yet the circumstances of things must be considered, from which the will of the benefactor can better be known.

851. • Query 3° Does error about the motive invalidate a contract?

Resp. 1° Affirmatively, if the error falls upon the final motive: for example, if you should give alms to Titius because you judge him poor, when he is rich; for your consent as to the very substance of the thing is lacking.

Resp. 2° Negatively, if the error falls only upon an impelling motive; for example, if you should give alms to Peter, a poor man whom you believe very upright, when he is less upright; for this error is merely accidental.²

852. Resolutions. - 1° If a priest at night buys cloth for himself, thinking it to be of black color, while it is green or violet, the contract is not valid, if he expressly declared that he wanted cloth of black color; for although color in itself is a mere quality, in this case it passes into substance, and therefore the error becomes substantial.

2° If, when you wish to buy Catawba wine, California wine is offered, the contract is valid of itself, notwithstanding error or fraud, because the error is not substantial. But justice is injured accidentally if Catawba is dearer; and therefore the seller will be liable to restitution. But if the price of each wine is equal, or if the price is diminished according to the proportion of the excess, the seller will be immune from injustice, although not from the sin of lying. I have said: of itself; because the error could easily be substantial, as for example if the buyer by express words had bound his intention to Catawba wine for a certain end, to which any other wine would not conduce.

3° Fraud differs from simple error in this, that the error arising from fraud was produced by devices applied to this end. Error which of itself would not be sufficient to void a contract can give place to nullity, if fraud has intervened on the part of the other contracting party, who besides is bound to damages arising from the fraud.²

Fear is 1° either grave or light; 2° induced by an intrinsic or extrinsic cause, necessary or free, just or unjust; 3° struck in order to contracting, or to another end. - Recall what was said in n. 15 and following.

853. Principles. - I. Any fear whatever so disturbing the use of reason that it excuses from grave fault utterly voids by every right the contract which follows from it. The reason is that then the consent required for contracting is lacking, whether fear altogether takes away the use of reason, or so impedes it that the consent cannot be called full and perfect.

II. No contract from fear arising from an intrinsic cause, or from a necessary or natural cause, is invalid, unless perhaps he who contracts from fear was not master of himself. The reason is that no injury is inflicted on the contracting party, and from elsewhere he preserves sufficient liberty. The same must be said if fear has been struck by a free cause, or by a man, from a just cause; hence a seducer, driven by grave but just fear to marry the girl whom he seduced, contracts validly.

III. Betrothals excepted, which on account of the greatest liberty that they require from their nature are rescindible, more probably no contract entered from light fear is rescindible. The reason is that light fear from whatever source is reputed as nothing in law, since it can easily be contemned. - Otherwise very grave inconveniences would follow in human commerce, since light fear is most frequent. Lugo contradicts, however, with others, whose opinion is not called improbable by St. Alphonsus.¹ Yet except marriage and religious profession, which, in the opinion of all, are not invalidated by light fear.²

854. Questions. - Query 1° Does grave fear unjustly struck by the co-party in order to contracting void the contract, if it does not at all disturb reason?

Resp. 1° In the opinion of all, and also by our law,³ contracts of this kind are rescindible, whether they are gratuitous or onerous. (x) p. 476.

Resp. 2° Whether they are void by natural right, there is given a threefold probable opinion. According to St. Alphonsus, the very common and more probable opinion is negative, since fear does not simply take away the voluntary.

By Law, however, acts elicited from grave fear are invalid where it is a question 1° of Marriage, and more probably also of betrothals; 2° of handing over goods of the Church and renunciation of a benefice; 3° of a vow and religious profession; 4° of ecclesiastical jurisdiction and absolution from censures; 5° of election of a Prelate.⁴

855. • Query 2° Is a contract entered on account of reverential fear rescindible?

Resp. More probably negatively, because it does not seem of itself a sufficient cause of rescinding a contract, unless at the same time it includes grave fear, for example of long-lasting indignation, etc. ... Likewise not even most importunate entreaties constitute grave fear, unless perhaps they are joined with reverential fear toward a Superior.⁵ Sanchez, Salmanticenses, and others commonly.

Query 3° Is a contract void, or rescindible by private authority, if grave and unjust fear is struck by a third party alone for extorting consent, so that the other party is not participant in the injury?

Resp. It is controverted. The 1st Opinion affirms, because by reason of the injury, even inflicted by a third party, the thing remains obligated to the prior owner, and consequently passes with that burden to any persons whatever. - Billuart, and, as it seems, St. Alphonsus, L. IV. 719, who besides adheres to this opinion if it is a question of Marriage. L. VI. 1045 sq.

The 2nd Opinion denies, because, since neither party has inflicted injury, no reason of natural right is present why the contract should be void and why it could be rescinded at the will of one, the other being unwilling. - Lugo.¹

856. • Query 4° What if grave fear was indeed unjustly struck, but not for extorting consent?

Resp. It is controverted, but it seems it must be distinguished thus: 1° If the fear was struck by the other of the contracting parties, the contract is not valid, or at least is rescindible, because one striking fear is bound to remove all inconveniences which arise from the injury.² Except Marriage. 2° Otherwise, if fear comes from a third party, because none of the contracting parties inflicted injury; but the third party who inflicts fear cannot take away the obligation of the contract by consenting to its rescission, since the contract was not entered with him: nevertheless he is bound to induce to rescission, so that he may avert injury from the innocent party, if this one wishes. Hence the purchase of a sword made from fear of your enemy is valid. Lugo³ excepts marriage, which nevertheless according to the principles of St. Alphonsus⁴ is not to be admitted. Others also except gratuitous contracts, because thus better provision is made for the innocent party, and the other cannot complain, since he is deprived of profit alone, and remains in the state in which he was before; and just as he himself would not wish to be obligated in those circumstances, so neither ought he to obligate the other.

857. Resolutions. - 1° If you threaten someone caught in theft that you will denounce him to the injured master, or to the guard, or to the judge, unless he promises a certain gift to you, the promise holds, and you are not bound to return the gift accepted, unless perhaps by the judgment of a prudent man it seems excessive. This is also true even if you had not had the intention of denouncing him, but only of frightening him, because you would cede from your right of doing this; which is estimable by price.

2° If Titius struck fear into you, so that you might hand over some thing to Caius, the contract is at least rescindible. For if Caius, at the time when he accepts the thing from you, knows the injury inflicted upon you, he is judged to strike fear through Titius. But if he knows it afterward (according to the 1st opinion, n. 855, q. 3°), he would be assimilated to a possessor of good faith, who is bound to restore as soon as he discovers that he has another's thing.

3° If someone prepares damage for you from mere malevolence, and therefore asks nothing from you; but you spontaneously promise money, that you may escape unharmed, you are not bound to hand it over; because, although fear was not struck in order to contracting, nevertheless the contract has as its object only the cessation of unjust vexation; but the vexer cannot sell this cessation: therefore whatever he thus acquires, he receives as a possessor of bad faith, and therefore ought to restore it.

4° If a traveler oppressed by a robber has called a man passing by to aid, promising him money, the promise is valid; because fear is not its cause, but only the occasion; and from elsewhere the aid furnished by the passerby is estimable by price. Yet if the sum was enormous, it would have to be diminished.

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.

S. Th. II-II, q. 61, a. 3.

448. Voluntary commutations are said to occur when someone voluntarily transfers his own thing to another. This can be done in many ways: for he can transfer

either 1° the thing itself simply:

or a) gratuitously, without debt, as in donation and succession,

or b) for the recompense of another equivalent thing, as in buying and selling, to which census and exchange are reduced;

or 2° his own thing as to be recovered, because credited for mere use, namely granting the use of the thing with the debt of recovering the thing:

or a) gratuitously, either in things non-fungible or non-consumable, and then it is a commodatum; or in fungible and consumable things, and then it is a mutuum; or in fruitful things, and then it is usufruct;

or b) not gratuitously, and then it is letting and hiring of things or of works;

or 3° his own thing as to be recovered, not by reason of use but by reason of preservation, as in deposit and sequestration; or by reason of obligation, as in pledge and suretyship, "when someone binds his own thing as a pledge, or when someone gives surety for another."

All these, like many others, are called contracts, whose necessity arises from the social nature itself and the indigence of man.

For since man cannot acquire happiness without the help of others, by that very fact he tends not only to live in society, but also to make agreements with others. Once the division of goods has arisen, not everyone possesses all things; and since human powers are limited, each easily understands that he cannot at the same time devote himself to agriculture and to various arts; indeed, even if he could, it would not be expedient, since by devoting himself to one art he becomes more skilled in it and produces many more and more perfect things: by division of labor, indeed, manufactured things increase immensely. But if he produces things of one kind, he will have more than are necessary to him, and on the other hand he needs many things which by his own labor he cannot produce for himself; whence it is necessary that, by commuting those things which he has more abundantly for those which he does not have, he obtain these things by making agreements with others.

And therefore, since man is not always able to possess, or by his own art to make for himself, all things which are necessary or useful to him, he strives to procure the same from others, namely by exchange, buying and selling, letting and hiring, and other pacts or contracts. Whence the faculty of alienating and contracting is proved from this, that without commerce in things and exchanges men would not receive from the right of dominion all those utilities on account of which precisely it was conceded by nature.

449. General principle to be attended to in contracts. - From what has been said it is understood that contracts more strictly so called, by distinction from a gratuitous act or an act of beneficence, instituted for the common utility of both parties, are ruled by the rule of justice which is prior and superior to every consent of the parties, namely by the law of equivalence between what is given and what is received. This principle rules the whole matter. St. Thomas notes it for the contract of buying and selling, in which the marks of a perfectly bilateral pact are more manifestly verified:

"Buying and selling seems to have been introduced for the common utility of both, namely when one needs the thing of the other, and conversely... But what has been introduced for common utility ought not to be more to the burden of one than of the other; and therefore the contract between them ought to be established according to equality of thing. But the quantity of the thing which comes into man's use is measured according to the price given... And therefore if either the price exceeds the quantity of the value of the thing, or conversely the thing exceeds the price, the equality of justice is taken away," q. 77, a. 1.

Hence 1) that principle holds concerning all contracts more strictly so called, introduced for the utility of both parties, such as the letting and hiring of merchandise and of works, partnership, exchange, census, also gaming, wagering, stock-exchange speculations, etc.;

2. insofar as someone most freely wills to depart from the said rule of equivalence in favor of another, the contract has the character of gratuitous beneficence or friendship;

3. if equality is injured against someone's will, the contract becomes by that very fact unjust;

4. he who would abuse another's ignorance, or would use fraudulent or violent means, so that the other would renounce the said equality or consent to inequality, by that very fact would sin against justice, making the contract inequitable.

450. Matter to be treated. - St. Thomas does not treat of the nature and species of contract, but supposes these things known from the law and custom of his time, and from the general principles of human acts; but he treats only of two special sins which can be committed in contracts alone, namely fraudulence, which occurs in buying-selling and in similar contracts; and usury, which occurs in mutuum and in similar contracts; because, as he says, "concerning other voluntary commutations there is not found another (new) species of sin which is distinguished from theft and robbery," of which there has already been discussion.

It will be for us to deal with the principal contracts in general and in species; namely:

A. Concerning contracts in general: 1. concerning the notion and division of contract; - 2. concerning the consent required for contract; - 3. concerning the object or matter of contract; - 4. concerning the subject of contract; - 5. concerning the effect or obligation of contract.

B. Concerning unilateral contracts: 1. concerning promise; - 2. concerning donation; - 3. concerning testament; - 4. concerning principles common to donation and testament; - 5. concerning legal succession.

C. Concerning bilateral onerous commutative contracts, namely: 1. concerning buying and selling; - 2. concerning letting and hiring; - 3. concerning the contract of partnership; - 4. concerning census and exchange.

D. Concerning bilateral gratuitous contracts: 1. concerning the contract of credit, or concerning commodatum and mutuum; - 2. concerning deposit and sequestration; - 3. concerning mandate and management of affairs.

E. Concerning aleatory contracts: 1. concerning insurance; - 2. concerning gaming, wagering, and lottery; - 3. concerning stock-exchange speculations.

F. Concerning subsidiary contracts: suretyship, pledge, and mortgage.

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.

Those are called civilly dead who have been condemned to death, to perpetual galleys, or to deportation. - By Roman law the principal effects of civil death are the following: 1st, to lose the ownership of goods, which pass to the heirs, without a testament being valid if they have made one; 2nd, not to be able to receive an inheritance or donations, except that which is destined for their sustenance; 3rd, not to be able to donate goods which they have acquired, whether among the living or by testament. But among us all these things do not have place; for civil death has place only in the crime of plotting the destruction of the United States, which crime is certainly rare. - Cf. Const. U. S. Art. 3, sect. 3, n. 1. - Bouvier, Law Dictionary, under the word Death, n. 22. - Kenrick, tract. 11, n. 36; and tract. 10, n. 87.

The interdicted are those who by sentence of a judge are declared incapable of exercising civil acts because of a state of weakness, dementia, or madness. Moreover, someone is given to 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; but its cessation must be declared by the judge, so that the interdicted person can again act civilly.

Prodigals, under whose name sometimes legally denounced drunkards come, are incapable of entering into certain contracts determined by law without the assistance of an adviser appointed by the judge. Moreover, the nullity of contracts entered into by the interdicted and prodigals can indeed be opposed by themselves or by those acting their cause, but not by those who have contracted with them, as was said concerning minors. - Cf. Kenrick, tract. 11, n. 6; and tract. 10, n. 87. - Kent, Comment. vol. 2, part 5, lect. 39, n. 450.

Aliens are called all who lack the right of citizenship, which among us one can have in a twofold way, namely: 1st, naturally, or by title of birth; 2nd, legally, if he has fulfilled the formalities required by law. And these formalities are: 1st, that after one has dwelt for three years in the United States he declare that his mind is to acquire the right of citizenship; 2nd, that he has dwelt for at least one year in the State where there is the Court to which he has recourse; 3rd, that he have testimony concerning honesty of life; 4th, that he make a declaration, confirmed by oath, that he will adhere to the American Constitution. But the children of those who thus acquire the right of citizenship, if they are minors and dwell in these States at the time when the parents acquire that right, become citizens by the fact itself. - Moreover, aliens are not able to contract concerning immovable goods validly and without restriction, and their heirs are always in danger lest they be deprived of those goods. - Nevertheless they can freely contract: 1st, for carrying on commerce; 2nd, concerning movable goods; 3rd, also concerning immovable goods within the five-year period before their admission among citizens, and in those things which are necessary for the use of these goods. Cf. Kent, Comment. vol. 2, part 4, lect. 25, nn. 49 and 62. - Wells, Every Man, etc., p. 116.

By the name of modifications are designated certain clauses added beyond the nature and essence of contracts, so that they now strengthen the obligation of the same contracts, now also increase or determine it, now suspend or destroy it. Moreover, the principal modifications of contracts are: 1st, oath; 2nd, modes; 3rd, conditions. These three must be treated briefly.

Many particular contracts exist, and new ones are discovered day by day by merchants. Only the chief ones will be spoken of in the following twofold section.

I. QUESTION I. Whether a contract celebrated from grave fear is valid? ANSWER. Many conditions are required that fear be called grave. First, that the imminent evil be grave. Second, that there be present probable grounds for fearing the evil. Third, that he who inflicts the fear be wont to commit the threatened menaces to execution. Fourth, that the terrified man be unable to decline the evils. The evils of death, of mutilation, of exile, of defloration, of the loss of one's estate, of vast goods, are, according to all, grave. Fear of infamy, of an excommunication unjustly passed, is likewise grave.

II. Theologians disagree upon the validity of this contract celebrated from grave fear. The first opinion denies that it is valid by natural law; the other affirms it, which St. Thomas clearly teaches, I-II, q. 6, art. 6: because things which are done from fear are absolutely voluntary, involuntary only in a certain respect. Fear therefore does not take away the liberty necessary for entering upon a contract.

III. Positive laws declare many contracts celebrated from grave fear null. And these are matrimony, betrothal, religious profession, the payment or promise of a dowry, the election of a prelate, the authorization of guardians, vows made to God, the handing over of ecclesiastical things, absolution from excommunication.

IV. The disagreement of theologians in this cause is of no moment: because although the contract be valid by natural law, nevertheless he who inflicts grave fear is bound by natural law to rescind the contract, that he may make good the injury inflicted. Nay, authors commonly defend that a contract vitiated even by slight fear is to be rescinded, since even slight fear inflicts an injury which ought to be repaired.

V. QUESTION II. Whether guile makes a contract void? ANSWER. Guile is taken for deceit, or for fraud, or for craft, by which one deceives another. Error, or guile, which precedes or accompanies a contract, if it be concerning the substance of the contract, makes it null and empty, because it takes away altogether the voluntary consent. When therefore guile, error, and craftiness are the cause of a contract, it is certain that it is null. On the contrary, if the guile or error be not against the substance, but against some accidental quality, it does not make void the contract, because it does not take away liberty as regards the substance of the contract. What if error or guile concerning a quality were the cause of contracting, so that if the guile or error were known by the deceived contracting party, he would in no way have entered upon the contract? In this case I judge that the contract is null. For although a quality in the physical order be accidental, yet while it gives cause to the contract, in the moral order it puts on the character of a principal cause. Nothing is more frequent in contracts of buying and selling than that the qualities of wares are the chief cause for carrying out the purchase; which cause being removed, voluntary consent fails. Hence it is that the civil laws in fact rescind contracts to whose entering upon guile or error gave cause. If losses follow, the party which circumvented the other contracting party is bound to make good the same. Whether therefore the contract be of strict right or of good faith, they are altogether null when guile or error is the chief cause of celebrating them. I do not deny, nevertheless, that in contracts of strict right one must adhere more severely to the formulas of words and expressions: for they are therefore called of strict right, because one must stand by the rigour of the words. But natural equity, which is the soul of every contract, ought always to be regarded.

VI. Adulations and blandishments do not hinder, but rather allure contracting parties to enter upon a contract. But two kinds of blandishments are to be distinguished. Blandishments, importunate entreaties, and flatteries, which by the courtesy of speech, the enticement of gesture, and the sweetness of the voice, falsehood and fraud being excluded, soothe and delight men's minds. That this kind of flattery does not destroy contracts is agreed among all. Other blandishments, crafty, malicious, furnished with frauds, lies, and arts of deceiving, which turn the mind away from virtue and from truth. That by this kind of flattery contracts are annulled and destroyed, no one can by right deny, when they give cause to the contract.

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.

IX. QUESTION IV. How is a contract made to a day, or under a disjunction, to be interpreted? ANSWER. If the day designated be determinate, the contract is to be celebrated on that day. The debtor is not bound to complete it before the appointed day, nor can he defer it after the appointed day. If the day be not appointed, but uncertain and annexed to a condition, then the condition is to be awaited. If no condition have been added, the time ought to be designated at the arbitration of prudent men. Disjunction comprehends diverse species; as if you say: I promise you a horse, or fifty gold pieces: both species remain disjunctively under obligation, but the choice is at the promiser's arbitration. One species perishing, nevertheless, the other remains under obligation.

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.

ONE is the bond of perfection by which the faithful, bound to one another, are united to God; but many are the ties and knots by which, as regards temporal advantage, men are bound not so much to one another as entangled in quarrels with one another, and these are contracts: Of the former, namely the contract of Charity, the Seraphic Bonaventure treated most fully; nor indeed does nearly all his work breathe anything else: Of the latter indeed he wove together but little (I confess). For while he was still a young man, on account of his aged wisdom of soul, he had been placed at the head of a Religious order, to which he had attentively presided for eighteen years, soon enrolled among the most eminent Cardinals, assumed to the Alban bishopric, and chosen as coadjutor of the supreme Pontiff, and distracted by various courts until his fiftieth year — in which, the Council of Lyons, over which he presided, having been concluded, he died, after he had contracted that famous union of Latins and Greeks — there was no time left over to spend on fully elucidating the contracts of the world; wonderful indeed, how amid so many straits of things and times he completed such outstanding volumes, in which divine and human things alike are wondrously described. Hence I will dispatch this matter more briefly, omitting nothing, however, that either pertains to the essence of contracts or regards the obligation of conscience in so difficult a matter. Moreover, for a fuller treatment, the immense works of Bonacina, Azor, and others are at everyone's hand, who strive to set forth lucidly whatever can intervene in contracts. Above all I shall treat of contract in general; afterwards I shall examine individual contracts in particular, where I shall touch chiefly upon those cases that serve daily practice everywhere; but if any cases occur that are now fallen out of use through desuetude, or rest on useless theory, I shall refer them to be examined by others.

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.

Titius, who was a servant to a certain noble family, confessed that he had discovered a fellow servant who had committed many thefts of the goods of their common master, and that he had not disclosed them to the master; indeed, that he had received a sum of money from the thief in order to preserve deep silence about the thefts. The confessor, however, is uncertain whether Titius sinned or not, and whether he is bound to restitution. Hence:

1. Are servants bound to prevent thefts of their master’s goods?

2. What is a base contract, and is it lawful to retain a benefit obtained from it?

3. To what extent is there an obligation of restitution by reason of participation in the thefts of another?

4. What is to be said of the case?

1. Are servants bound to prevent thefts of their master's property?

Yes; they are so bound at least in charity, and they are bound in justice also if the goods of their master that are stolen were specially entrusted to their charge and keeping.¹

1 Manual of Moral Theology, vol. i, p. 290.

2. What is an immoral contract, and is it allowable to retain the consideration which has been paid on account of it?

See this question answered above, p. 290.

3. How far does partaking in another’s theft impose an obligation to make restitution?

A partner in another's theft is bound to restore any stolen goods that he received, and if he took part in the acts of theft, or by his conduct encouraged the thief in his thieving, he will also be bound jointly and severally with the thief to make good all the damage done.

4. The case. Titius was bound at least in charity to inform his master about the thefts of his fellow servant at least if this was necessary to prevent future thefts. He was bound also in justice if the care of his master’s property was specially entrusted to him, and he will be bound to make restitution for failing in this duty of justice imposed on him by the nature of his office. Titius, moreover, took money from the thief and promised not to inform on him. If we suppose that Titius had no special charge of the stolen property, and the only question is of his obligation concerning past thefts of his fellow servant, the contract made with the thief was indeed immoral and made him guilty of an indictable offence called misprision of felony. However, it is not certain that he is bound to restore the money which he received as consideration for his silence. If according to what was said above, informing his master is necessary to prevent future thefts, or his duty imposes on him the obligation in justice of informing about the thief, he should be told to do his duty and return the money which he received from the thief to his master as partial restitution for the thefts.

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.

When Caius, a missionary priest, had recently been transferred to another parish, his former parishioners wished to make a gift as a testimony of their grateful spirit. Titius, one of them, attended a meeting of the parishioners at which this was determined, and, moved after hearing the praises of Caius, promised that he would give five pounds sterling. On the next day, however, because the merits of Caius did not seem so great and the sum of money promised appeared large, Titius changed his mind and determined to give nothing. But because his conscience was not at rest, he disclosed the whole matter in his next confession to Julius, who had succeeded Caius. When questioned by Julius, Titius asserted that he had had no intention of binding himself in justice; hence the confessor began to doubt whether he was constrained under sin by any strict obligation—indeed, not under grave sin because it was not from justice, nor under light sin because, as he said, a light obligation has no proportion with grave matter. Before he gives Titius an answer, Julius asks:

1. A contract is a bargain productive of an obligation of commutative justice in each of the contracting parties. A bargain is a consent of two wills to the same object. Thus a promise, before it is accepted, is not a bargain. But even after acceptance a promise is not a contract, for the promiser may not choose to bind himself in justice, but only in good faith, while the promisee is under no obligation whatever.

2. There are such things as implicit contracts, attached to the bearing of certain offices, whereby a man becomes his brother's keeper. The liability contracted is limited by the nature of the office: thus a physician is officially bound in justice as to his patient's pulse, but not officially as to his purse. Where there is no explicit contract, the duties which the subjects of a person's official care have towards him are not duties of commutative justice. Thus these implicit contracts are not strictly contracts, as failing to carry a full reciprocity.

3. Contracts are either consensual or real, according as they are either complete by the mere consent of the parties, or further require that something should change hands and pass from one to the other. What contracts are consensual, and what real, depends chiefly on positive law. No natural law can tell whether buying and selling, for instance, be a consensual or a real contract. The interest of this particular case is when the goods are lost in transmission: then whichever of the two parties at the time be determined to be the owner, apart from culpable negligence or contrary agreement of the sender, he bears the loss, on the principle, res perit domino.

4. Contracts are otherwise divided as onerous and gratuitous. In an onerous contract either party renders some advantage in return for the advantage that he receives, as when Titius hires the horse of Caius. In a gratuitous contract all the advantage is on one side, as when Titius does not hire but borrows a horse. The Roman lawyers further distinguish contracts, somewhat humorously, into contracts with names and contracts without names, or nominate and innominate, as anatomists name a certain bone the innominate bone, and a certain artery the innominate artery. Innominate contracts are reckoned four: I give on the terms of your giving, otherwise than as buying and selling,—to some forms of this there are English names, as exchange and barter: I do on the terms of your doing: I do on the terms of your giving: I give on the terms of your doing.

Readings.—De Lugo, De Just. et Jure, 22, nn. 1, 2, 5, 6, 9, 16, 17. For buying and selling and the frauds incident thereto, Paley, Moral Philosophy, bk. iii., p. 1, c. vii.

Claudina promises her husband, on the day of their marriage, that she will make over to him the sum of three thousand dollars, as soon as he shall have served out the term of his enlistment in the army. In the meanwhile, however, her husband becomes addicted to drink and before the term of his enlistment has expired is a confirmed drunkard. Claudina refuses to keep her promise. She proposes to keep the money herself and use it for her children. Her husband, however, insists that she keep her promise to him and give him the money. What is Claudina to do under these circumstances?

Solution.—Claudina's promise has all the necessary qualities of a binding contract, and it imposes on her, therefore, the obligation of keeping it, in the event of the husband complying with the conditions of the promise. As the case stands, it is not clear what use Claudina's husband is to make of the money once it comes into his possession. If Claudina intended that her husband should be perfectly free in the use of the money for whatever purpose he might choose, and this seems to have been the case, then it is certain that Claudina would never have made the promise had she foreseen the circumstance of her husband becoming a drunkard. The fact that she postponed the fulfilment of her promise until her husband should have completed the term of his enlistment seems to prove that she made this reservation expressly. Since she intended, therefore, to bind herself by her promise only on the condition that her husband should remain a good, decent man, she is, under the circumstances, absolved from all further obligation toward her husband in the matter. For a so-called "contractus gratuitus unilateralis" is considered void when the circumstances of the person or thing have so changed that it may be taken for granted that from the start the obligation imposed by the contract was not to be extended to this case. The wife may rest perfectly easy in her conscience, and all the more so, since she intends to use the money for her children, whereas, the father by his drinking is prevented from taking the necessary care of his family.

But should not the wife, in the interest of domestic peace, give way to her husband and let him have the money? No; because it is not she, but the husband who is disturbing the peace of the family, and if she gives him the money promised she only lends him new means for indulging his habit of drink and further destroying the peace of the home.

Only in case the conveying of the money to the husband did not give him the free disposition of it, neither now nor later, could the wife be advised to make it over to him. But in that case the husband would have no further interest in the matter. The wife may, if she pleases, renew her promise to her husband, but make its fulfilment depend on his thorough and sincere reform.

A man died recently and left a will, disposing of a small estate. The bulk of the estate was left to his children, but a bequest of one thousand dollars was left to a certain charity. The will was offered for probate, but was declared void by the court, because it was not drawn according to the requirements of the law, and the man was adjudged to have died intestate and his estate was ordered distributed according to law, as if he had died without making a will. The decree of the court, of course, canceled the thousand dollar bequest to the charity. Are the children, nevertheless, bound in conscience to comply with the known will of their father and donate one thousand dollars to the said charity? Or may they accept the decision of the court as discharging their conscience from any further obligation to pay this thousand dollars? These people are in poor circumstances, but they are conscientious Catholics, and desire to know what their strict duty is in this matter.

Answer.—This case comes under the general question of how far the civil law binds or discharges a man’s conscience in the matter of justice..There can be no doubt that the laws of the state may and do bind in conscience, independently of the fact whether the thing it commands or forbids is already commanded or prohibited by the divine or natural law. Laws made by competent authority for the common welfare are binding in conscience.

This is true of the state as well as of the Church. The state is a competent legislative authority in civil affairs. If its laws did not bind in conscience, the citizens would be always at liberty to transgress its laws, made for the common good, whenever their transgression did not involve a transgression of the divine or natural law, and thus defeat the common welfare and circumvent the ends of civil society. Especially is this true of state laws concerning property rights. The civil law, creating or transferring or extinguishing property rights, aims at promoting the common welfare, and nothing affects the security of the citizens or the perma- -nence of the state more than laws regarding property. For the order and security of a community it becomes necessary at times for the civil law to create or extinguish or transfer claims and titles to property.

If the civil law, in accomplishment of this, might not bind the citizen’s conscience, its purpose would be largely, if not wholly, frustrated. Just as the Church, for the promotion of the common good in religious matters, may make laws that bind in conscience, since the Church is a competent legislative authority in religion, so may the state, being a competent legislative authority in civil matters, make laws, that bind in conscience, for the promotion of the political and social welfare of the citizens.

Now the common weal demands sometimes that certain juridical acts be declared void of any legal value whatever, because they work harm to society, and if the purpose of the laws can not be secured unless they place a burden on the conscience, then, since the common welfare demands that they be enforced, they become binding in conscience. Thus a husband is not permitted by law to deprive his wife of her legal share of his property. If he makes a will or a conveyance of property, thus injuring her, the law nullifies or voids his act, as being inimical to the best interests of the community.

Now, if the voiding of the husband’s act did not hold in conscience, the wife would not be allowed to vindicate her rights, and the law of dower would become inoperative, to the great detriment of society. There is no doubt, therefore, that the civil law may wholly annul and make void, not only for courts of law, but for the court of conscience also, juridical acts of citizens, such as the conveying of property, for instance, if the common welfare demands it. In any particular case the intention of the lawmaker or legislature must be examined as to the value or force of formalities required by the law.

It is generally admitted, however, by the moralists that laws of the state voiding certain acts and performances of private citizens only void them civilly, or as far as the civil courts are concerned, unless it can be shown that it was within the contemplation of the law to void the act even in the court of conscience. State laws that transfer or extinguish property rights demand a strict and narrow interpretation, because being in restraint of the citizen’s liberty they are aliquid odiosum, and, therefore, strictae interpretationis. Moreover, an act or a contract that is, by its nature, valid, must not be judged invalidated by the civil law, unless it is clearly the purpose of the civil law thus to invalidate it. But when a court does declare certain acts and performances of individuals null and void, then such acts and performances are void also in conscience, because otherwise the declaration of the court would be vain and idle, and public order and security would be put in jeopardy.

When contracts, therefore, as for instance last wills and testaments, are declared null and void by the civil law unless certain legal formalities are complied with, it is a probable opinion among theologians, and therefore a safe opinion to follow in practise, that the purpose of the law is to void such last wills and testaments only as far as the civil courts are concerned. Therefore, the heirs to an estate are not bound either in law or in conscience to observe the provisions of a will that has been declared void by the court; and they may demand legally the return of any property that was conveyed under the will, because by so doing they are only enforcing their rights that they enjoy under the law. But on the other hand a beneficiary under a will that has been declared void by the law need not return the bequest until the court has declared the bequest to have been null and void and ordered him to return it.

In the case before us, therefore, the children of this man, whose will was thrown out by the court of probate, are not bound in conscience to give the thousand dollars to the charity designated by their father, because they may avail themselves of a law that is just and sound in principle, and made for the protection of society, but whose value would be destroyed if it did not bind in conscience. If, however, any part of the bequest had been already paid over to the charity, the charity could in conscience retain it until compelled by a decree of the court to return it.

My Dear Doctor:

In the HOMILETIC MONTHLY AND CATECHIST, Vol. VIII, No. 2, page 170, you try to solve a Casus Conscientiae, a Will Case.^* Now, my dear doctor, I claim that nearly everything you say in that article is absolutely false. You say: “There can be no doubt that the laws of the State may and do bind in conscience.” That the laws of the State may bind in conscience, transeat; that they do bind in conscience I deny, and I prove it. According to Moral Theology, lex non obligat ultra mentem legislatoris. Atqui; no State legislators ever intended to oblige any man in conscience to observe any law. Therefore civil laws do not oblige in conscience. Our civil lawgivers do not acknowledge any conscience. All our civil laws are penal laws, and no more. Hence any citizen is allowed to violate any law of the State without committing a sin, for the law knows no sin.

^* The Case found on page 65 is referred to.

If the laws of the land bind in conscience, then a divorced man may marry a divorced woman!

While the heirs in this case can not be compelled by law to pay the thousand dollars to charities, yet they are bound in conscience to do so, if it can be proven that it was the will of the father that one thousand dollars should be given to charities.

SACERDOS.

‘Answer. It is our constant endeavor to solve the Cases of Conscience appearing in the HOMILETIC MONTHLY according to the principles of sound Catholic morality, as expounded by the great theologians of the Catholic Church. Upon the teachings of St. Thomas, St. Liguori, Cajetan, Suarez, Lugo, Bellarmine, Lessius, etc., and not upon any notions of our own, if we have any, do we rely for a solution of the difficulties presented to us. We are aware that the solutions we give of Cases of Conscience may not ‘always meet with the approval of everybody, nevertheless, they will be found, upon examination, to rest upon the teachings of some, if not all, of the great theologians, whose orthodoxy and learning are both above suspicion. Thus in the solution of the Will Case, to which “Sacerdos,” in the above communication, takes exception, we did but solve the Case according to the principles laid down by St. Thomas, 1-2, q. 96, art. 4; Suarez, de Leg. 1. III, ch. 21; Bellarmine, de membris Ecc. militantis, 1. III, ch. 11, etc., and more recently by Bouquillon, theol. fund. de lege civili, ch. 1; Noldin, de VII praecept. n. 137; Tanquerey, de Contract. n. 617; Aertnys, 1. I, tract. III, n. 144, etc.

Suarez, loc. cit., treating of the power of the civil law to bind the conscience, says:

“On this matter there was an opinion denying that civil magistrates can bind in conscience through their laws. Heretics, who deny that rulers possess true power to make laws, hold this all the more.” Among Catholics, he continues, Gerson, in a work on the spiritual life, seems to deny the power of the civil law to bind the conscience, but without any good reason. Then he says: “But it must be said that human civil law has the force and efficacy of binding in conscience. This is the common opinion of Catholics, as may be seen in St. Thomas with his commentators.”—1, 2, q. 96, art. 4, etc. Here follows a long list of theologians, whom Suarez quotes as justifying him in asserting that it is the common opinion of Catholic theologians that the civil laws bind in conscience. Among those whom he quotes we find Soto, Bellarmine, Navarrus, Salmeron, S. Antoninus, etc. Hereupon Suarez makes the statement that the assertion that the civil laws bind in conscience is de fide, or proxima fidei. “And the assertion appears either to be of faith or proximate to faith; for it is gathered almost openly from that passage of Paul to the Romans, chapter 13: He who resists authority resists the ordinance of God; but those who resist acquire condemnation for themselves. Chrysostom, homily 23, understands this there as condemnation also before God. Likewise the reason is added there in these words: For he is God’s minister; whence it is gathered that obedience must be given to him, not only because of wrath but also because of conscience, as if he said openly: not only because of fear of punishment, but also in order to avoid fault; for this is what the phrase ‘because of conscience’ strictly signifies, as Ambrose, Anselm, St. Thomas, Theodoret, and almost all the others understood it.” The reason why the civil law binds in conscience, says Suarez, is because the legislator in making it acts as the minister of God, and by the power which he receives from God. The divine law and the natural law require that the laws made by legitimate rulers be obeyed. Yet, observes Suarez, we must not think that it is the divine law or the natural law that binds our conscience to obey the civil law; it is the civil law itself that places the burden of obedience on us. “Nor does it follow from this either that that fault (disobeying the civil law) is properly against the natural law, or that the obligation to an act commanded by human law is natural; because, as I touched upon above, human law stands as the proximate and secondary cause, which rests upon the eternal law as its first cause. But an effect which proceeds proximately from a secondary cause, so that it would not be produced by the first cause except through the secondary, is attributed simply to the secondary cause; and therefore this obligation, even though it is in conscience (of obeying the civil law), proceeds simply from human law.”

Suarez’ eighth proposition (1. III, ch. 21) is this: The aforesaid power is necessary for the suitable government of the human commonwealth. As the wife is bound in conscience to obey the husband, and the son to obey his father, and the servant his master, and the monk his superior, so a fortiori, is the citizen bound in conscience to obey the laws of the state. “And the reason a priori is that government without the power of coercion is ineffective and is easily despised; but coercion without the power of binding in conscience either is morally impossible, because just coercion presupposes fault—which is very probable, as will be explained more fully in what follows and in the treatment of penal law—or at least is very insufficient, because through it adequate provision could not be made for the commonwealth in many necessary cases.” The divine law and the natural law are altogether inadequate, being too indefinite and indeterminate for the government of a state. When the legitimate lawmakers, therefore, in any state, make just laws for the protection and well-being of the state, those laws are binding in conscience, by virtue of the human power that made them, “they bind immediately by virtue of human legislative power, which can add that obligation in conscience over and above the obligation of natural or divine law” (loc. cit.).

Omitting the intervening chapters, we come to ch. 27, “Whether the obligation of human law, as regards its gravity, depends upon the intention of the legislator.”

“To understand the point of the question, we suppose that the legislator can conduct himself in various ways when making a law: first, that he intends simply to make a law concerning such a matter, and nothing further: ******* in the first manner the law undoubtedly binds in conscience, because a true law by its nature has this effect if it is not excluded; hence, by the very fact that the intention is directed toward a true law and this effect is not excluded, it is sufficiently intended and is produced through the law. Nor is a formal intention of binding in conscience, or under mortal sin, always necessary; indeed, this scarcely enters the mind of a civil legislator, especially among unbelievers, concerning whom the same reasoning applies. It is the same in a vow and a promise, because, if they are made, they bind in conscience at once, although the one promising has thought nothing about conscience; therefore it is the same in a law, nor is there any reason why a more explicit intention should be necessary.”

We have given here a mere outline of Suarez’s teaching, nevertheless it is sufficiently clear from what we have quoted that Suarez maintains that the civil law may, and in fact does, bind in conscience, even though the law-giver did not think about conscience or an obligation in conscience, when he made the law, and even though he be an infidel, and deny all conscience.

Cardinal Bellarmine’s teaching is identical with Suarez’s, as may be seen by a reference to his treatise de membris Ecclesiae militantis, bk. III, ch. 11.

St. Thomas, 1-2, q. 96, art. 4, asks: “Is the obligation imposed on man by human law binding in the court of conscience?” He makes answer as follows: “Laws enacted by men are either just or unjust. If they are just, they have a binding force in the court of conscience from the Eternal Law, whence they are derived. Laws are said to be just in respect of the end, when they are ordained to the general good; in respect of the author, when the law does not exceed the competence of the legislator; and in respect of the form, when burdens are laid upon subjects in proportionate equality in order to the general good. For as one man is a part of a multitude, all that every man is and has belongs to the multitude, as all that every part is, is of the whole; hence also nature inflicts loss on the part to save the whole. Under this consideration the laws that impose these burdens according to proportion are just and binding in the court of conscience, and are legal laws.”

Dr. Bouquillon, sometime professor of moral theology in the Catholic University at Washington, was one of the most eminent of modern moral theologians. In his Theologia mor. fund. de lege civili, 222 ss. he says:

“Civil law is truly moral, since it does not convey mere coercion but produces an obligation in conscience and before God. For it is enacted by authority communicated by God, in the name of God, and is sanctioned by God. Indeed, in the inspired documents we have that the power of rulers is from God, and that rulers are ministers of God, sent by Him; therefore obedience must necessarily be given to them for the sake of God and conscience; consequently, those who resist rulers resist God Himself and acquire condemnation for themselves. Moreover, the holy Fathers unanimously teach that a superior, who is God’s vicar, must be obeyed just as God Himself is, because God commanded obedience to a superior and because God will exact punishments by no means light from those who do not obey. Right reason easily proves the same: for although through civil law a man is immediately ordered only to temporal good, mediately he is nevertheless also ordered to eternal good, since, according to the divine disposition, the temporal serves the eternal; and therefore violation of it turns one away from the end.”

For every statement in the foregoing the learned author quotes the Scriptures and the Fathers. He proceeds:

“Civil law as such produces an obligation in conscience, and not only insofar as it contains and applies natural, divine, or ecclesiastical law; this is gathered clearly from the texts cited. Civil law produces an obligation in conscience by the very force of command, and not by the force of a special will added to the command; that is, for obligation it suffices that the superior intend truly to command, nor is it required that he expressly intend to impose an obligation in conscience; for this follows necessarily from command. Hence some sometimes seem without justification to doubt the obligation of civil laws in conscience because modern legislators care very little about conscience, or even about God Himself. Moreover, civil law produces obligation of itself, by its own efficacy, and independently of the Church’s approval.”

Tanquerey, de contract. ch. 1, says:

“Everyone admits that the civil authority can enact such laws (invalidating contracts). The whole difficulty lies in determining which civil laws bind in this way. When the legislator has declared this clearly, there is no difficulty; but most legislators today do not speak explicitly about the moral or natural obligation of laws; hence the question must be resolved from the purpose of the law: namely, if the public good requires that the law be regarded as invalidating even before the judge’s sentence, the act must at once be regarded as invalid in conscience, etc.”

In confirmation of this he refers to a decision of the Holy Office, given in 1873. The Italian government passed a law in 1866 requiring its creditors to accept paper money in payment, regardless of any previous contract to the contrary. The Holy Office was asked whether this law was binding in conscience; it answered, on January 21, 1873: “as a rule, in the affirmative, unless particular circumstances stand in the way” (Acta S. Sedis, t. VII, p. 211).

Aertnys, C. S. S. R., says: “Every human law, properly so called, always and necessarily binds in conscience at least to something. **** Nor does it matter that civil legislators are unbelievers who do not care about conscience; it is sufficient that they simply intend to bind, and by that very fact an obligation in conscience arises, as the Apostle teaches in Romans 13:1, 2, 5, speaking of pagan rulers: ‘Let every soul be subject to the higher powers; for there is no power except from God, and those that exist have been ordained by God. Therefore he who resists authority resists the ordinance of God; but those who resist acquire condemnation for themselves. Therefore be subject of necessity, not only because of wrath but also because of conscience’” (de legibus, c. III n. 144).

Fr. Noldin, S. J., says: “Concerning intention, however, note this: just as it is not necessary that the legislator explicitly intend to impose an obligation in conscience in order that the law bind in conscience, so it is not necessary that he explicitly intend to impose a grave obligation in order that the law bind under grave sin; for just as the intention to bind is judged to be contained in the very exercise of legislative power, in the same way the legislator is presumed to intend generally to enjoin grave matter also under grave sin. Therefore it must be held absolutely that even an unbelieving legislator enacts laws binding in conscience” (de legib. n. 137).

These quotations might be continued indefinitely, but sufficient have been given to make it clear that, according to Catholic theologians, the laws of the state do, as a rule, bind in conscience, even though the legislators be unbelievers and infidels, and have no concern either about God or conscience. Indeed, from a perusal of these same theologians, it will appear that, instead of all modern civil laws being merely penal, the great body of the civil law is moral, i. e., binding in conscience, and that the purely penal laws are very few when compared to the whole body of the law.

Among the laws of the state that bind in conscience are to be included many laws concerning the ownership, purchase and sale, etc., of property; the laws concerning the prescription of property, treasure trove, valuables found, certain of the laws invalidating contracts, and certain of the laws invalidating last wills and testaments. For example, Fr. Noldin says: “Civil laws establishing rights or transferring ownership ordinarily bind in conscience from commutative justice before every sentence of a judge. For a law enacted by competent authority for the common good binds in conscience. But rights which pertain to goods of fortune constitute the object of commutative justice; therefore preceptive laws which establish the rights of citizens concerning goods of fortune bind from commutative justice” (de VII, praecept. n. 347).

In like manner, the civil laws concerning treasure trove, invalidating the contracts of minors, excluding certain persons from the benefits of a will, etc., are all binding in conscience.

As a rule the dispositions of the civil law regarding last wills and testaments only affect the same civilly, i. e., in foro externo, ante judicis sententiam. “Therefore if,” says Noldin, “a sick man near death gives a legacy to someone orally, the gift, since it lacks legal form, is formless; therefore the heir is not bound to pay the legacy and can recover it juridically if paid, because he can use the right granted to him by law; but neither is the legatee bound to return it until the heir has obtained the invalidation of the gift through a judge” (de vi legis civil. n. 3).

Stock companies require special consideration, since they have been advanced as an argument in favor of socialism, for the reason that the capital invested in them not rarely produces large gains, although it is almost entirely alienated from the hands of the proprietors or shareholders. Extensive enterprises in commerce, industry, mining, railroads, steamboats, etc., prove remarkably successful in companies or syndicates, although their directors have no personal interest in them.

However, the absence of personal interest is but apparent in these cases. In regard to the subordinate officials of such companies the same rule holds good as in the case of state industries—their own personal interest binds them to their position; and the higher authorities or directors confront the laborers in the capacity of proprietors. But the directors of these syndicates have themselves large interests in the enterprises and are, consequently, concerned for their success and prosperity; for in most cases they are among the chief shareholders, and in case the enterprises are prosperous they obtain larger dividends. Even the subordinate officials of such companies have in many cases a share of the profit. Sincetherefore, the directors have an almost absolute power over the officers appointed and the laborers employed by them, it is easy to perceive the reason why such companies, notwithstanding the apparent sequestration of the capital, should realize large profits.

For the rest, it is a well-known fact that stock companies, compared with private enterprises, are at a disadvantage in regard to economy in the use of raw materials, machinery, etc.; and, consequently, such organizations with small capital are generally unsuccessful. But in the case of large syndicates with extensive capital these disadvantages are counterbalanced by still greater advantages.¹

¹ Cf. Leroy-Beaulieu, Le Collectivisme, p. 348 sqq.

Another essential difference between syndicates and the ideal socialistic organization is the circumstance that in syndicates the directors are rarely changed. The permanence of the directors is a necessary condition for the success of large enterprises. If the direction is often changed there is a lack of unity and system, as the opinions of different directors will rarely be found to coincide. What guarantee would there be for this necessary permanence in the direction of the socialist industrial organizations, since the directors would be chosen and deposed by popular vote, and the principle of the equal rights of all would admit of no permanence in the administration of the more influential offices? Would not the continual changes and experiments be a source of endless disturbances and stoppages of the industrial machinery? But if the supreme directors of industrial organizations are not entrusted with sufficient power, if their decision is made dependent upon the consent of the majority, they are thus deprived of the power necessary for the efficient administration of their offices.

183. Ownership has been defined (No. 170) to be the right to dispose at will of material, external goods. Now, the right to dispose of an object at will involves the right to transfer it to another person. This act of transfer begins in the owner's will, is continued in the expression to the other party of this act of his will, and is completed by the latter's acceptance of the offer. This consent, externally manifested, of the two parties concerned, agreeing to the transfer of rights, is called a contract.

184. A contract is gratuitous, or one-sided, if only one party gives up a right to ownership, the other party accepting the proffered benefit without any cost to himself. This is the case in free gifts amongst the living or in the behests of the dying. In either instance, the equality implied in natural justice requires the person benefited to make the compensation of gratitude to the donor.

185. A man has a right, derived not from civil legislation but from the natural law, to dispose of his property by his last will Yet he cannot do it in such a manner as to violate the rights and just claims of others. Hence, the father of a family has no right to alienate his entire property in favor of externs, if in so doing he should leave his wife and children destitute. If he dies without making a will, they have a right, founded on the natural law, to inherit his property. The share that each member of the family shall receive is usually determined by existing civil laws.

186. Inviolability is due to last wills, not only by reason of the right which the testator has to dispose of his property, but also on account of the common good of society. Few men would care to exert themselves beyond the efforts necessary for present needs, if they could not dispose of the property acquired by their toil for the benefit, after their death, of those who are nearest and dearest to them, or of objects and institutions the success and continuity of which they had greatly at heart during life.

187. All contracts in which both parties assume an obligation, or in which both yield some right for the benefit received, are called onerous. The rights thus exchanged or transferred need not be those of ownership; yet, of whatever kind they may be, the principle of equality between what is given and what is received determines the justice of the transaction. This principle, however, is not to be too strictly interpreted. If, for example, I take a fancy to an article of little intrinsic value in the possession of another and induce him to let me have it at a high price, the bargain is just. Though materially no equality exists between the price and the thing purchased, still there may be an equality formally between what I pay and the value that, of my own free choice, I set on the article. But this supposes that the excess of the price is assented to freely on my part. If another takes advantage of my special need and forces me to pay more than the commodity is worth, he does me an injustice, and the contract is unjust.

188. To be valid or binding, every contract, whether it be gratuitous or onerous, must be attended with the following conditions:

1. The contracting parties must be competent persons — i. e., in the full possession of reason; hence, infants, insane and intoxicated persons are not competent; minors are legally incompetent — i. e., their contracts are usually not recognized as valid before the law.

2. The matter of the contract must be appropriate -- i. e., the rights transferred must be really capable of transference, and must belong to those who exchange them. Hence, no one can validly bargain to do a thing that he has no right to do.

3. Proper form must be observed. Both civil and ecclesiastical authority may, each in its own province, appoint certain forms, the non-observance of which renders some contracts null and void. The natural form essential to every contract is the true, full and mutual consent of the contracting parties. This supposes that both have a sufficient knowledge of what they are agreeing to. Hence, if one of the parties seriously misunderstands the contract, he is not bound to stand by it. Contracts made by minors can frequently be rescinded or annulled by their parents or guardians, because minors are supposed to act with insufficient knowledge.

The price of a thing is the expression in money of its value. But what is value? What is it that makes a pair of boots sell for sixteen shillings in a certain place on a fixed day? The question is one of primary importance in the science of Political Economy. Jevons¹ quotes with approval the following words of Mill: —

¹ Theory of Political Economy, p. 80.

Almost every speculation respecting the economical interests of a society thus constituted, implies some theory of value; the smallest error on that subject infects with corresponding error all our other conclusions; and anything vague or misty in our conception of it, creates confusion and uncertainty in everything else.

The theory of value is picturesquely said by a foreign writer to be the dragon which guards the entrance to economic science; while another declares that he who understands value, understands half of the difficulties of the science of Economics.² If the notion of value is fundamental in Economics, it is of great importance, to say the least, in Moral Theology, and particularly in questions concerning justice and contracts. It may be of interest to inquire what economists have to say on a subject which specially belongs to their province, and to compare it with the received doctrines of Moral Theology. According to a recent writer, economists have shown the teaching of theologians on the point to be chimerical and absurd: and as I propose to make the words of this writer the basis of my remarks, I will quote him at length : —

² C. Antoine, S.J., Economie Sociale, p. 258.

In modern times the form of economic doctrine has been affected by the fact that it has been so much discussed by men who were accustomed to deal with physical and mathematical problems, and who brought their habitual methods of reasoning to bear on the phenomena of supply and demand. In a similar fashion the economic doctrine of the thirteenth century in Christendom was affected, as far as its form was concerned, by the engrossing studies of the time; economic problems were discussed by men who were habituated to the methods of metaphysics. In accordance with current modes of thought, they tried to determine an ideal standard which should be realized in particular transactions, and sought for a definite conception of a ‘‘just price’’; the practical inquiries then resolved themselves into means for discovering the just price of each particular thing. From the modern point of view this whole quest was chimerical: prices are always fluctuating, and must, from their very nature, fluctuate. According to the ‘‘plenty or scarcity of the time’’ there will be great differences in the quantities available, and, therefore, in the relative values of wheat, cloth, coal, and commodities of every sort. We know, too, that the commodity used for money must vary in value from time to time, and that, therefore, there must be continual fluctuations not only in values but in prices as well. The attempt to determine an ideal price implies that there can and ought to be stability in relative values, and stability in the measure of values, which is absurd.

The medieval doctrine and its application rested upon another assumption, which we have outlined. Value is not a quality which inheres in an object, so that it shall have the same worth for everybody; it arises from the personal preferences and needs of different people, some of whom desire a given thing more and some less, some of whom want to use it in one way and some in another. Value is not objective—intrinsic in the object—but subjective, varying, with the desires and intentions of the possessors or would-be possessors; and because it is thus subjective, there cannot be a definite ideal value, which every article ought to possess, and still less a just price as the measure of that ideal value.³

³ Dr. Cunningham, Western Civilization in its Economic Aspects, 1900, p. 78.

According to Dr. Cunningham, therefore, the medieval theory of a just price for everything, and the medieval concept of value have been shown to be absurd and untenable by modern economic science. The schoolmen of the Middle Ages, habituated to the study of metaphysics, looked upon value as a quality intrinsic to the thing itself. To them it was something objective, definite, stable, and fixed; and so the measure of value, or price, was something stable and fixed also.

On the contrary, the doctrines of modern economic science have been formulated by men accustomed to deal with the physical and mathematical sciences. These men have brought their strictly scientific methods to bear on the economic problems of supply and demand. They have taught us that the medieval quest after a just price for commodities was as chimerical as the quest after the San Grail. Taught by them we now know that prices are not stable and fixed, but are always fluctuating, and must of their very nature fluctuate. The plenty or scarcity of the time will affect the quantities of the available commodities, and so will affect the relative values. We now know that. money itself, the measure of value, is subject to the same economic laws as other commodities, and that it fluctuates in value as they do. So that the attempt of the schoolmen to arrive at a just price for each particular thing involved the two absurdities of supposing that there can be stability in relative values, and stability in the value of money.

Let us see what the schoolmen really did teach about the just price of commodities. It is easy to state some absurd theory, ascribe it to the metaphysical scholastics of the Middle Ages, and then proceed to demonstrate its absurdity. It is a more scientific method of procedure first, as the scholastics were fond of doing, to make sure of the fact — Primo, queritur utrum sit.

Molina, one of the great doctors on justice, will tell us what the common teaching of the schoolmen concerning the just price of commodities really was. Almost any other of a score of scholastic theologians would serve our purpose equally well, and I shall refer to one or two others in the course of my remarks, but in the main I propose to follow Molina. The difference between the date at which he lived and the thirteenth century, which Dr. Cunningham has specially in view, need not trouble us, for there was no change of doctrine in the meantime; Molina’s teaching is merely that of St. Thomas somewhat amplified.

This scholastic doctor then is careful in the first place to say what the just price is not derived from. It is not, he says, to be measured by the excellence of things according to their own nature and intrinsic qualities, but according as they serve man’s use and benefit. A mouse considered in its own nature is a more excellent thing than corn, but mice are worthless, while corn, which serves man’s necessities, has its price.

However, he proceeds, the price of a thing does not depend merely upon its usefulness for supplying man’s necessities, but it depends a very great deal upon the estimation which men commonly choose to have of it with reference to its use. Thus the just price of a gem, which is for ornament only, is greater than that of a large quantity of corn, wine, meat, cloth, and horses. And among the Japanese a piece of rusty iron or cracked pottery is of immense value on account of its antiquity; while among us it is worth nothing at all. And mere ornaments of colored glass have a far higher price among the Ethiopians than gold, which they exchange for them. Now all this is brought about solely by the common estimation in which things are held in the place where they are exchanged, so that such trafficking is not to be condemned, though the want of culture and the manners of such peoples are sometimes laughable.

So that the just price of a thing depends a great deal upon the common estimation of men in any place; and when without fraud or any unfair dealing, a commodity is commonly sold at a certain price in any place, that may be considered the just price, as long as the circumstances which cause prices to vary remain unchanged. The Roman Civil Law⁴ and the common opinion of doctors agree on this point.

⁴ L. Pretia rerum, Dig. ad legem Falcidiam.

But it must be observed, adds Molina, that a great many circumstances alter the prices of commodities. Thus scarcity makes the just price rise, while plenty makes it fall; the greater number of competing buyers at one time than at another, or their eagerness to buy, makes prices rise, on the other hand the fewness of buyers makes them fall; the greater demand at one time than at another, while the supply remains constant, as of horses in time of war, makes prices rise. The scarcity of money in any place makes the price of other things fall, while abundance of money makes the price of other commodities rise. For the less the supply of money in any place the greater its value, and thus many more other goods are bought with the same sum. The manner of sale, too, alters the price, as we see in sale by auction, or when a man is anxious to find buyers and seeks them, or in sale by retail.⁵

⁵ Molina, De Justitia, tract. ii., disp. 348.

The just price which we have been considering was called by some theologians, following Aristotle, the natural price; not, as Molina is careful to explain, because it did not depend largely on men’s estimation, nor because it was not very inconstant and changeable, but to distinguish it from the legal price, which was settled for some commodities by law. Inasmuch as the natural, or vulgar price as it was also called, depended upon men’s estimation, wants, and desires, which are very various, it could not be a quantity exactly determinate and precisely defined, it necessarily admitted of a certain latitude; and so theologians distinguished the highest, the lowest, and the middle price, and taught that justice would be done if the seller kept within those limits.⁶

⁶ Ibid. disp. 347.

All this, even in the light of modern economic doctrines, seems eminently practical and thoroughly in keeping with common sense; I fail to detect in it anything that savors of the “ metaphysical,” if that term is intended by Dr. Cunningham to mean unreal and unpractical. The whole point of the teaching of the theologians lies in this, that there is such a thing as a fair and reasonable price for commodities, in which English law and English juries agree with them, and that it is matter of justice to keep to it in contracts. The scholastics certainly knew as well as the modern economist that prices are always fluctuating; they knew that the plenty or scarcity of the time has great influence on the relative values of commodities of every kind; they knew of what is now called the law of supply and demand; they even knew that money is exposed to constant variations in value, and that it would be absurd to look for stability either in relative values, or in the measure of values. In fact they knew all that Dr. Cunningham has taken for granted that they did not know.

From what has already been said, it is quite clear also, in spite of what Dr. Cunningham seems to imply, that the scholastics knew that “value is not a quality which inheres in an object, so that it shall have the same worth for everybody.” Molina expressly states that it arises from the preferences and needs of different people, with their different desires and wants. As we shall presently see they unanimously denied that the seller can charge for any special individual advantage which may accrue to the buyer from the bargain; thus clearly supposing that social and individual value were two very different things. However, a difference between the scholastic doctrine on value and modern theories is touched upon, when Dr. Cunningham proceeds to say : —

Value is not objective—intrinsic in the object—but subjective, varying with the desires and intentions of the possessors or would-be possessors; and because it is thus subjective, there cannot be a definite ideal value, which every article ought to possess, and still less a just price as the measure of that ideal value.

According to modern theories then, value — exchange value is meant — is merely subjective, varying with the desires and intentions of the possessors or would-be possessors of a commodity; and so there is no definite value which a thing possesses, and no just price, for a just price is merely the just measure, the proper equivalent of value. A man may sell a horse for what he can get, he may exact whatever interest the borrower will give him for a loan, he may pay his workmen as little as necessity forces them to take for a day’s wage. There is no just price for commodities, justice is not violated by however unconscionable a bargain. Certainly these are conclusions of great importance, and if they had been proved to be true, we should have to modify some of the rules of Moral Theology. Catholic theologians of the Middle Ages, as well as their successors of to-day, are unanimous in teaching that there is such a thing as a just price for commodities, that justice can be violated by charging too much for what is sold, and that individual wants and tastes do not finally settle the just price. “The estimation of one or two,” says Lugo,⁷ “does not suffice to raise the price, but the common estimation is required.” This doctrine is common to all theologians, and most are content to quote in proof of it the Roman Civil Law: “The prices of things are not settled by the tastes or utility of individuals, but by those of the generality of people.”⁸ The great authority of the Roman Law, that ever-living monument of written reason, was of itself considered sufficient to settle the question; but some went further in their inquiries as to the method of arriving at the just price. Scotus taught that to estimate the just price of his merchandise the merchant should reckon up all the expenses which he has incurred in buying, transporting, housing his goods, then add to them something for his labor and trouble, and something else to compensate for the risks he has run: what corresponds more or less to all these items, will be the just price, he says.⁹

⁷ De Justitia, xxvi., n. 42.

⁸ L. Pretia rerum,

⁹ Molina, disp. 348.

In modern phrase the costs of production were the measure of value, according to Scotus. This opinion was commonly rejected by other theologians, who pointed out that if this were so, the merchant who had lost a portion of his goods might raise the price of the rest to compensate himself; which could not be admitted, for the price of goods is not measured by the profit or loss of the seller, but by the common estimation concerning their value in the place where they are sold, consideration being given to all the circumstances; besides Res perit domino, and it was not fair that the public should bear the private losses of the merchant.

63 Dig. ad legem Falcidiam.

The common estimation then is the cause of value and the measure of value, according to the scholastics; and if the formula be understood as they understood it, there seems no objection why “the common estimation ” should not still be used as a correct term for the cause and the measure of what economists call market prices. For certainly the market price of an article, whatever it may ultimately depend upon, is settled proximately by the common estimation of the value of the article in the particular market, at the time in question. Some of the most recent writers on Economics state this doctrine in terms as precise as those used by the scholastics. Thus Mr. J. A. Hobson¹⁰ says: —

¹⁰ The Social Problem, 1901, p. 144.

Now, just in proportion as exchange or market-value enters and displaces use-value, so does social determination of value displace individual determination. While value in use is strictly personal, value in exchange is distinctively social. A market, however crudely formed, is a social institution ; the value of our farmer’s produce is partly determined by the personal labor he has put into them, but partly by the needs and capacities of others, and not even by the needs and capacities of any definite individual, but by a great variety of needs and capacities expressed socially through the instrument of a market price, which is a highly elaborate result of bargaining, and does not represent the needs or the capacity of any single purchaser.

It would seem, then, that the difference of view between theologians and economists appears prominently and practically only with regard to non-market prices. The theologian teaches that justice requires that there should be an equivalence of social value between the price and the thing bought; (I say “social value,” because, of course, each party to a contract hopes to gain in individual value in use, otherwise there would be no exchange;) that the just price is settled by the common estimation of the value of an article; that value is partly objective, inasmuch as it supposes usefulness, capacity to be esteemed and desired, in the object, partly subjective, not, indeed, with reference merely to the wants and desires of the buyer and seller, but with reference to the common estimate of people at the particular time and place. However, theologians commonly allow the seller to charge for any special private loss of any sort which he may suffer from parting with his property, the pretium affectionis as it is called; and so to this extent they concede that subjective and private wants and desires may be allowed to influence the terms of the contract. What they agree in rejecting is the view that the seller may exact a higher price on account of some private necessity of the buyer, for then he might sell dearer to the poor than to the rich, or on account of some special advantage accruing to the buyer from his purchase, for then he would sell what did not belong to him, and sin against justice.¹¹

¹¹ St. Thomas II. II. q. 77, a. 1.

On the other hand the economist considers that the value of an article and its price are settled by the consent of the parties to a bargain; no man would give 100 per cent. interest for money unless it were worth his while; the loan, therefore, is worth that price to him, and the lender does him no injustice in taking it.

This, of course, would be true if both parties to the contract were equally intelligent, free, and independent; a man, if he chooses, may give what he likes of his own for any commodity ; if he gives a sovereign for a cup of tea at a bazaar, held for a charitable purpose, nobody will have anything but praise for his generosity. But usually when an unconscionable bargain is struck the parties are not on equal terms.

If a man promises 100 per cent. for a loan, when the current rate of interest on money is 3 per cent., or if a laborer undertakes to work for sixpence a day, when the common rate of wages is sixpence an hour, hard necessity alone, or perhaps ignorance, will have been the cause of his consent to such unfair terms. In such cases theology teaches that he who exacts such hard terms commits a sin against justice, and is bound to restitution; but the theory of value, on which this theological doctrine rests, is, according to Dr. Cunningham, an “ assumption which we have outlived.”

The difference between theological and economic doctrines on this point may partially perhaps be explained by the difference of standpoint assumed by theologians and economists respectively. Theologians consider the question from an ethical point of view, they condemn whatever the Christian code of morals condemns; on the other hand many economists at least treat the phenomena of political economy as they treat the phenomena of the physical sciences. The law of supply and demand is, for the purposes of the science, studied and reasoned upon with the help of mathematics as if it were as necessary and determinate as a law of astronomy; most economists abstract from questions of morality. Thus Jevons wrote: —

I conceive that such a transaction must be settled upon other than economical grounds. The disposition and force of character of the parties, their comparative persistency, their adroitness and experience in business, or it may be a feeling of justice or of kindliness really influences the decision. These are motives altogether extraneous to a theory of economy.¹²

¹² The Theory of Political Economy, p. 124.

Perhaps Dr. Cunningham belongs to this class of economists, and perhaps he would not disagree with the theologians if he treated the matter from their point of view, for he writes: —

We feel that it is unfair for the economically strong to wring all he can out of the economically weak, or to trade on terms in which ‘‘common estimation’’ is notoriously set aside. We have given up as impracticable many of the old attempts to put down hard bargains with a high hand: but modern moral feeling does not sensibly differ from that of medieval times in the desire, if it were possible, to interfere with the action of any dealers who are able to enrich themselves through the necessities or the ignorance: of others, and to gain at their expense. If we tried to find a test by which to discriminate hard bargains we could scarcely do better than adopt the medieval phrase and say that hardship arises when a bargain is made without reference to ‘‘common estimation.’’¹³

¹³ Western Civilization, p. 80.

This is admirable, but we hardly see how it can be reconciled with other passages of the same author. In other passages he seems to condemn the theological doctrine not only as out of place in economics, but as false in itself. He thus seems to agree with many other writers, the earliest of whom is said to be Hobbes, who rejected the hitherto received doctrine on commutative justice, and substituted an invention of his own. “The value of all things contracted for,” he says, “is measured by the appetite of the contractors: and therefore the just value is that which they be contented to give.”¹⁴

¹⁴ Hobbes, Of Man, p. 187.

This assertion Hobbes did not attempt to prove, nor has it been proved by any of his followers. The argument drawn from marginal values is no proof that the subjective and individual theory of value is in accordance with truth and justice; it merely formulates the fact that as a rule people will exchange commodities as long as it is worth their while to do so.

Economists are by no means agreed as to the nature of value, although all confess that it is a question of the greatest difficulty; some hold that it is purely subjective, depending upon the desires of each individual; others, that it is the same thing as private utility; others, that it is social utility; others, that it is the relation between two services exchanged ; others, that the value of a commodity is the labor bestowed on it, and so forth. None of these theories is commonly accepted, and none of them is an improvement on the old doctrine that common estimation is the cause and measure of value.¹⁵ The merely subjective theory, which seems to be most in vogue, fails to furnish any reasonable ground for condemning transactions which all, economists included, admit to be wrong. It even furnishes some sort of justification for the iniquities of the swindler, the usurer, and the sweater. I cannot do better than conclude this article with the concise argument by which, in his Encyclical on the Condition of Labor, Leo XIII proves its falseness as applied to the price of labor.

¹⁵ Professor Smart in his little book on The Theory of Value

We now approach a subject [says the Holy Father] of very great importance, and one on which, if extremes are to be avoided, right ideas are absolutely necessary. Wages, we are told, are fixed by free consent, and, therefore, the employer, when he pays what was agreed upon, has done his part, and is not called upon for anything further. The only way, it is said, in which injustice could happen would be if the master refused to pay the whole of the

(1914) says: “The history of economic science is strewn with the wrecks of theories of value,” p. 1.

wages, or the workman would not complete the work undertaken. ...

This mode of reasoning is by no means convincing to a fair-minded man, for there are important considerations which it leaves out of view altogether. To labor is to exert oneself for the sake of procuring what is necessary for the purposes of life, and most of all for self-preservation. In the sweat of thy brow thou shalt eat bread. Therefore a man’s labor has two notes or characters. First of all, it is personal; for the exertion of individual power belongs to the individual who puts it forth, employing this power for that personal profit for which it was given. Secondly, man’s labor is necessary; for without the results of labor a man cannot live, and self-conservation is a law of Nature which it is wrong to disobey. Now, if we were to consider labor merely so far as it is personal, doubtless it would be within the workman’s right to accept any rate of wages whatever; for in the same way as he is free to work or not, so he is free to accept a small remuneration or even none at all. But this is a mere abstract supposition; the labor of the working man is not only his personal attribute, but it is necessary, and this makes all the difference. The preservation of life is the bounden duty of each and all, and to fail therein is a crime. It follows that each one has the right to procure what is required in order to live, and the poor can procure it in no other way than by work and wages.

Let it be granted, then, that, as a rule, workman and employer should make free agreements, and in particular should freely agree as to wages, nevertheless there is a dictate of Nature more imperious and more ancient than any bargain between man and man, that the remuneration must be enough to support the wage-earner in reasonable and frugal comfort. If through necessity, or fear of a worse evil, the workman accepts harder conditions because an employer or a contractor will give him no better, he is the victim of force and injustice.

In the Irish Theological Quarterly for October, 1914, Fr. Kelleher subjected the doctrine of the just price which I have been defending, to some adverse criticism. He writes:

The difficulty against this, which we may call the general desirability, convenience, or utility theory, is that it is only a variety of the fascinating game of sending the fool farther. In substance it means that we can get over the objection against a subjective, individualistic standard by applying it to 100 or 1000 cases instead of to one.

GREAT excitement some time since was caused by the Government’s proposal to tax betting transactions. Mr. Snowden denounced it in the House of Commons, several Nonconformist religious bodies have declared that they are opposed to it, and even some sections of the Church of England have raised their voice against it. The chief objection against the proposal, and the only one which concerns us here, is that the proposed taxation would be against sound morality. A writer in the Guardian acknowledged that it was difficult to draw the line between a bet which is harmless and gambling which is ruinous, but he would have the moralist decline to attempt to draw such a line; he quoted Pascal to the effect that the heart has reasons of which the intellect knows nothing.

But, surely, if we want sound ethics we must appeal to reason and not to sentiment. It is often difficult to draw the line between what is right and what is wrong, but there is no other way of obtaining a code of rational morality. All right rules of conduct are a mean between two vicious extremes. The right use of money is the mean between stinginess and extravagance, and so with all virtues except divine charity. Divine charity is the end of all virtue; it is the measure of all virtue, and we cannot have too much of it. But of all other virtues we may have too much as well as too little, and so if we want to have moral rules for the guidance of our conduct, we must necessarily draw the line, separate what is defective from what is excessive, and thus define what is right and what is wrong.

Betting is not necessarily wrong. A man intends to go on a short holiday at the week-end. On Friday morning he says to a friend: “I think it will be a fine day to-morrow.” The friend prides himself on being weather-wise and he answers: “I'll bet you a shilling that it will rain.” “Done,” said the other “I’ll take your bet.” Few people would maintain that such a bet as this is morally wrong. We suppose that both parties can spare a shilling, that both intend to pay if they lose, that nobody suffers in consequence of the bet. As one might give the other a shilling as a present if he chose, so he may pay a shilling to the other according to agreement, because he was wrong in his forecast of the weather.

But, as everybody knows, betting is liable to abuse. Money may be staked of which the bettor has not the free disposal, or more than he can afford. If he loses his bet he may be ruined, or he may be sorely tempted to commit theft or fraud in order to get wherewith to pay. Frequent betting becomes gambling, and a very dangerous habit is formed. Gambling encourages idleness, leads people into bad company, and very frequently ends in ruin. Gambling, then, or playing for high stakes, is usually wrong for one reason or another. In other words, betting may be unobjectionable from the point of view of morality if it is indulged in sparingly and under certain conditions. It may be compared to drinking intoxicating liquor. It is not wrong to drink a glass or two of beer or wine if you can afford it; it is wrong to drink to excess or more than you can afford to pay for. It was necessary to try to get clear notions about the morality of betting before going on to consider the question of the morality of the taxation of betting. The two questions are connected, but they are not identical. With regard to an institution which is certainly immoral I can well imagine a most moral Government saying to itself: “I cannot suppress you; if I attempted to do so I should probably do more harm than good. But I know that you are making a great deal of money. I will tax you, and that, at any rate, will have the good effect of diminishing your profits, and preventing others, perhaps, from imitating your example, induced thereto by the hope of realizing the excessive profits which you realize at present,”

Is there, then, anything objectionable, from the point of view of sound morality, to the proposal of the Government to tax betting transactions? I cannot see that there is anything objectionable to the proposal. As to the assertion of Mr. Snowden that the proposed tax would patronize, legalize, and make respectable one of the greatest curses of the country. I must say that I fail to see it. After all, to tax a man is hardly to patronize him or make him respectable. Such an argument may come well enough from His Majesty’s Opposition in the House of Commons, but it hardly produces conviction when it is read calmly in the quiet atmosphere of one’s room. The taxation of intoxicating liquor offers a complete parallel. In the case of intoxicating liquor, taxation does not patronize or legalize drunkenness, or make it respectable; how, then, could taxation patronize or legalize gambling, or make it respectable ? Without qualms of conscience on the part of the most scrupulous, the Government obtains a large annual revenue from the taxation of intoxicating liquor; why should it not endeavour to raise a little money by the taxation of betting? Drinking intoxicating liquor is a luxury, and so is betting.