The matter of a contract

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.

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.

The object can be distinguished as twofold, remote and proximate. By remote we mean that about which consent is concerned, as a horse, wheat, and so forth; by proximate is understood that to which the parties consent with respect to the remote object, as the buying-selling of a horse, of wheat, and so forth. Now then:

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.

756. • The matter of a contract generally is things and acts, or all those things which can fall under the dominion of man, and concerning which the contracting parties have free administration.

The matter of a 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 avoiding fortuitous events, since this is impossible. Hence if someone undertakes them upon himself, he obliges himself only to repairing the damages proceeding 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 estimable by no price.

3. Honorable and licit in itself, that is, prohibited by no law; because no obligation can be given to a dishonorable and prohibited thing. But for the validity of a contract it suffices 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 if someone buys a stolen thing, he buys invalidly, even if good faith was present in each contracting party, as is clear from what was said concerning the possessor of good and of bad faith, n. 635 and following.

5. Certain and determined, either individually, or in quantity and quality; otherwise the contract would be illusory.

757. Questions. - Q. 1. Whether you can accept a price for your action already owed from justice to someone, if the same action can profit another, the right of the former, to whom it is owed, remaining unharmed?

Resp. Affirmatively. The reason is that you do not injure the right of the former, with whom you had contracted, and you render yourself useful to the later one. Thus, for example, if Titius has hired you to go to a certain place for the sake of treating some business, you can also be hired by Peter to make that journey for treating a new business, provided the later mandate does not harm the former. - St. Lig. and others.

Q. 2. Whether a price can be accepted for a thing owed, not indeed from justice, but from another virtue; for example, if you accept money for fasting in the time of Lent?

Resp. Affirmatively, at least more probably, because that is given from mere liberality and is judged a merely gratuitous gift. - St. Lig., n. 713, and others commonly. - Nevertheless it is supposed that the action or thing to which the donee is held is estimable by price; otherwise the contract would be invalid. Hence he would be held to restitution who exacted money for showing the way to a man passing by, when without any labor or loss of time he can show it; since that action is not estimable by price ¹.

¹ In this last particle the Author evidently changes the hypothesis, and introduces someone exacting something, whereas previously the question had been only about one accepting. Nor indeed is a distinction of this kind of no moment. For if you imagine one indeed merely accepting, but another giving something from a liberal gift, it certainly does not matter whether the thing or reason on account of which it is given is estimable by price; for a donation, as being plainly gratuitous, requires no price of work in the donee. But otherwise one must speak if you imagine another exacting something as if owed to himself, when nevertheless he furnishes nothing in itself worthy of price, when the reason of a gift also would cease, which is repugnant to the hypothesis of an exacted price. But in these things the Author, by using the hypothesis of one exacting a price for indicating the way to one passing by, wished to insinuate a principle otherwise most true: that the price of some work can indeed be taken both from the labor or inconvenience necessary for it, and from common estimation, but not from the singular necessity of someone, or from the convenience which as it were by accident comes to someone from it.

Q. 3. Whether a contract is valid if the matter is possible only in part?

Resp. Affirmatively, if the thing is divisible in itself, and the contract was made concerning it divisibly; otherwise, if it is indivisible or if agreement was made concerning it indivisibly. Hence, for example, if you bought 100 measures of wheat in such a way that the contract is not perfected except when the thing has been delivered, and 50 perish, the contract still holds for the remaining 50. But if you promised a hand-watch, and you learn that you have only a partial right in it, your promise will be null.

758. • Q. 4. Whether a merely spiritual thing can be the object of a contract, whether gratuitous or onerous?

Resp. to the first. Affirmatively. For the right of nature is no obstacle, since agreements of this kind have nothing disordered; nor divine right, since God has permitted, indeed has commanded, the gratuitous communication of spiritual things: thus from the obligation of fidelity you can promise prayers, Masses, Relics, etc.

Resp. to the second. 1. Affirmatively, if the thing is spiritual on each side ², because then no Simony can be present in the exchange, since there is no comparison of a spiritual thing with a temporal thing.

² Understand: unless a prohibition of the Church is added, as happens, for example, in an exchange of benefices made by private authority.

2. But negatively, if the thing is merely spiritual on one side, while temporal on the other; because no comparison can be given between the spiritual and the temporal, as is clear from what was said concerning Simony, n. 287 and following.

759. • Q. 5. Whether the matter of an onerous contract can be a temporal thing joined to a spiritual thing?

Resp. 1. Affirmatively, if it is joined antecedently, the prohibition of the Church in particular cases being excluded; provided nevertheless that the price is not increased on account of the spiritual thing joined to it. - See what was said concerning Simony, ibid.

Resp. 2. Negatively, if it is joined consequently, at least by ecclesiastical law. But this question chiefly regards benefices.

Resp. 3. But if it is joined concomitantly, distinguish. 1. Negatively, if it is joined intrinsically and necessarily, because then the temporal thing has no value independently of the sacred thing, as is the labor of a Priest in celebrating, absolving, etc. - 2. But affirmatively, if it is joined extrinsically, as was said concerning Simony, ibid.

760. • Q. 6. Whether a thing accepted from a shameful contract must always be restored?

Resp. 1. Before the placing of the shameful work, affirmatively; because the dominion of this thing was not validly transferred. - Thus all.

Resp. 2. After the placing of the work, it is controverted. A twofold probable sentence is given. First Sentence, the more common, says that the price can be accepted and retained, indeed also that it ought to be given from justice. The reason is: 1. because there intervenes there a twofold contract, one absolute, namely concerning the shameful work to be placed for a price, and this is void; the other conditioned, concerning the handing over of the price if the shameful work has been placed, and this, the condition having been fulfilled, becomes valid. For, the work having been placed, the contract I give so that you may give already arises; the nature of this contract demands that always, as often as one contracting party has furnished his part, the other is held to fulfill his own, if he can licitly do so; 2. because although the shameful action, insofar as it is illicit, is worthy of no price, nevertheless, insofar as it is laborious, ignominious, dangerous to the agent, or useful to another, it has a price. - St. Lig., as probable, n. 712. - Lacroix. - Lugo. - Lessius.

Second Sentence denies, because a contract invalid before the placing of the work cannot be made valid through this. Hence Rule of Law 18 ³: That is not strengthened by the passage of time which by law does not subsist from the beginning. Therefore, etc. - Thus Roncaglia. - Comitolus. - Carrière, n. 333.

³ Rule XVIII of Law, although very well known, no one of the older authors alleged for this matter, because it is altogether foreign to the point. For the older authors knew that the obligation then arises when the contract is perfected; but the contract of which there is speech, just as all innominate contracts also (see Lugo, De Iust., Disp. 22, n. 19), is not perfected unless delivery has followed on the part of one. Therefore the beginning of the obligatory contract is taken not from the pledged faith of a promise given, but from the work furnished. Just as namely the promise of sale is not sale, nor must the promise of marriage be confounded with marriage, so in the present matter the preceding promise does not have in itself the force of the innominate contract concerning which we are discussing, upon which therefore the allegation of Rule of Law XVIII, as Carrière judged, could fit.

But Roncaglia and Comitolus are falsely alleged. For Roncaglia (De Restit., Cap. 6, Q. 1, Resp. 2) writes these things: After the evil has been perpetrated, setting aside now the prohibition of positive law, the money promised to the malefactor, for example, to a prostitute, a homicide, or anyone whatever who for the sake of the one promising did some evil, must be given. For this it must be observed that although sin considered in itself and formally is always detestable and worthy of no price, nevertheless considered according to the material, that is, insofar as it can bring pleasure, convenience, utility, etc., to someone, it is reputed estimable by price... Hence that prostitutes can retain the price which is given to them is had in L. Idem 4, De Condict. ob turp. caus., and St. Thomas teaches it, etc.

But Comitolus, although he runs through pathless and devious places according to his undisciplined genius, nevertheless (Resp. moral., Lib. 3, Q. 5, n. 15) finally comes to this: that he defines that after the crime has been perpetrated, the promised wage must be paid to the prostitute. And it matters little that according to his genius he gives a wondrous reason, namely that the promised wage must be paid as a fine imposed by the laws upon the crime, without waiting for the sentence of a judge; which portentous reason would bring the matter to this, that rather than being punished with a penalty, the guilty woman would have to be heaped up with a reward from the law, and indeed the wage would have to be paid also by him who did not promise. But all these things are plainly congruous with the genius of the author, just as also that which he himself saw (ibid., n. 2), that it is the sentence OF ALMOST ALL THE DOCTORS that nothing is owed to the lessor of criminal work, when Card. De Lugo (Disp. 18, n. 59) saw that it is the COMMON and true sentence that there is an obligation of paying the promised price.

And indeed from Comitolus other allegations seem to have been gathered, for example of Adrian, John Medina, and Navarrus, which among others (see St. Alphonsus, Lib. 3, n. 712) you find for that opinion. But in these also you may see a deed worthy of Comitolus. Indeed Adrian (In IV, De Rest., § Restat., fol. LXXVI, Roman edition, 1522) has these most explicit things: He who obtains something by an office or act forbidden to him... does nothing against commutative justice. Therefore he is not obligated to restore. Then to the objection that the price of prostitution was forbidden to be offered in the temple, he replies: The price of the flesh is licitly and rightfully possessed; nevertheless it is equally prohibited... to be offered in the house of the Lord. But to the texts of Law by which shameful pacts are declared void, he responds: Nor does the text there openly say that a promise made to a man on account of a preceding shameful cause is not valid, but only... concerning a future shameful cause... It seems otherwise when the baseness has already passed and is as it were purged.

The things which are brought forward from Medina do nothing to the matter. For he only (Cod. De Restit., page 156), by force of the law (L. Lucius 9, ff. De Iure Fisci), which orders that goods acquired by inheritance by a wife through poison given to her husband be ceded to the fisc, contends that whatever is acquired by a delict punished by the laws is to be adjudged to the fisc. Whence he concludes that the gains of a hidden prostitute are to be adjudged to the fisc, but not of a public one, whom the laws tolerate. And indeed let that heteroclite conclusion be dismissed, which no other person has deduced from that text (see Covarruv., In C. Peccatum, De Reg. Iur. in VI, § 2, n. 3). But indeed what will you extract from these things for our matter? Indeed from the fact that he wishes only gains from delicts which the law avenges to be restored, by that very fact he concedes that other gains from delict can be retained. Nay, he openly teaches that dominion of gain from delicts which the law punishes is acquired by the delinquent, saying: The laws nevertheless place a difference between this woman, that is, a public prostitute, and that one, that is, a hidden one. For if they are hidden prostitutes, the gains which they thus acquire they deserve to lose, and an action is given to the fisc, so that it can take them away from such persons. But before the sentence of condemnation has been passed against them, the dominion of the gain is with them.

Finally, so that the sentence of Navarrus may be clear, it will suffice to have brought forward these things from Man., Cap. XVII, n. 34: I say fourth principally, that what has been accepted by a prostitute on account of the shameful cause of fornication does not necessarily have to be restored even in the forum of conscience. In this conclusion almost all, both Theologians and Canonists and Jurists, agree; which last words again prove with how great levity Comitolus boasted that the opposite sentence was that of almost all doctors. Moreover the reason displeased Navarrus, which, as he says, St. Thomas also and all others after him follow. Because, he subjoins, it seems to be repugnant to itself, since it presupposes that it is shameful to prostitute oneself, and that it is not shameful to take a wage for prostitution; when, as he explains below, n. 41, reception of the wage is approval of the committed sin, and therefore a new sin. Wherefore he at least exacts this (ibid., n. 41): that the delict not be the principal cause of seeking the things promised, but an impulsive cause and occasion without which he would not seek: as if, for example, shoes made wickedly on a feast day could not be the cause, but only the occasion, on account of which a wage or price is paid to shoemakers. But since finally he agrees in the same conclusion with the common sentence of the Doctors, the remaining things, altogether singular, which even Thomas Tamburini himself (Decal., Lib. 7, Cap. 5, § 3, n. 20) affirms to be far from the truth, and which Navarrus himself sincerely confesses that he brings forward against the common sense of all, are easily to be condoned to an otherwise excellent man.

And indeed these are the more important things which are brought forward for the defense of this kind of cause. For the things which Collet heaped together for the same matter (De Iust. et Iur., P. 4, Cap. 1, art. 4) seemed so wretched even to him that, although he was most devoted to this kind of opinion, they could not draw him further than that he said he inclined toward it. I said Collet was most devoted to this opinion; for he was so consumed with abandoned love for it that, since he had at hand no more than four writers whom he might oppose to the most common and nearly certain sentence of all the Doctors in Theology and in both laws, this was enough for him to pronounce intrepidly: In this point there is a twofold opinion even of sounder Theologians! But otherwise, who are those sounder Theologians for his part? Comitolus, namely, the condemned work of Henry of St. Ignatius, an unknown anonymous author of Collat. Paris., with the compendium of Sambovius! And indeed, what is even greater, he did not dare to bring these forward as if contending for that opinion, but, as he himself says, they hold this, or approach it; and then, and this is still more wondrous and worthy of an iron forehead, he says that John Pontas favors them, who otherwise, he himself not denying it, plainly teaches the opposite! Truly a patronage worthy of this cause, and a patron worthy of it!

Finally, so that nothing which pertains here may be omitted, some advert (see St. Alph., Lib. 3, n. 712, q. 1) that this opinion was held as probable both by Lessius and by Diana; but Tamburinus (Decal., Lib. 7, Cap. 5, § 3, n. 20) adds that not ignoble Doctors teach it, and that it pleased many Canonists apud Azor (P. 3, Lib. 4, C. 21, q. 2).

But as regards Lessius, he affirmed this only concerning crimes which are punished by positive law, for example, if examiners of parish priests received something from candidates by reason of the examination (see Lib. 2, Cap. 14, n. 60, and Cap. 18, n. 20). But these things pertain nothing to the general question according to natural law.

But as regards Diana, let it be enough to observe two things: 1. This probability, whatever it may be, for he calls the opposite more probable and common, he himself (Tom. 8, Tr. 7, R. 59, n. 3) attributes to the authority of Durandus, Medina, Navarrus, Comitolus, and Valerus. But Medina, Navarrus, and Comitolus are wrongly called into patronage, as we have seen. Durandus, whose allegation Diana took from Valerus, merely contends (In 3, Dist. 39, q. 4) that no obligation arises from an oath or vow concerning an illicit thing, as if this were pleasing to God; which things, as is plain, do not touch the matter. Finally Valerus (Differ. utriusq. Fori, V. Promissio, Diff. VIII) concedes that the use of the body is sellable, although he denies that the price must be given, lest this seem to be paid for sin. But at the same time (ibid., Diff. IX, n. 1) he establishes that in the forum of conscience he who promised a hundred for committing homicide is held to paying after the work has been completed, although in the external forum the other cannot exact them. Therefore the authorities by which Diana bound that probability, whatever it may be, vanish. - 2. Diana (l. c.), from the mind of those whom he alleges, urges one reason only, that sin is not sellable or worthy of a price. But he himself (Tom. 6, Tr. 7, Res. 140, n. 4) contends that this reason is false. Therefore he himself of himself destroys that empty probability, which rests upon no reason except a false one, nor upon any authority except a fictitious one.

Finally, as regards the Doctors not ignoble whom Tamburinus mentions, he in fact remembers no one else except the accustomed Navarrus, Comitolus, and Valerus, whose names he says he borrowed from Diana. But the opinion which according to Azor (l. c.) is common to many older Jurists and Canonists differs nothing from that which above we saw handed down by Medina, namely that the price is permitted by the laws to prostitutes publicly exposed, but not to other women. And from these things, just as Medina does, Azor concludes: Therefore the only difference is that by the laws, in those things which are given to public prostitutes, repetition of the price is not given in the exterior forum... But truly in other women, by the laws, the right of repeating what was given to them is conceded. Wherefore Azor also, equally with Medina, subjoins: Whatever, therefore, may be the case concerning the exterior forum, gain accepted in any other copula on account of a lustful act perpetrated is not to be restored in conscience, because no law compels to this. Therefore the assistance which someone might think to be present in the not ignoble Doctors and in the Jurists and Canonists mentioned by Tamburinus falls back in vain.

Moreover these things had to be set forth a little more diligently, after that fictitious probability, which some have seemed to attribute to this opinion, has been conspicuously abused by others for defending that immense paradox concerning there being no obligation of marriage as regards him who violated a girl under a given pledge of marriage. Concerning which matter this also happens to be observed: there are those who narrate, indeed also congratulate themselves, that somewhere it was sanctioned by episcopal law that promises of marriage for obtaining defloration, even perhaps confirmed by oath, should be judged invalid; and they report Collet as the author of this history, as is to be seen apud St. Alphonsus (Lib. 3, n. 641). Nevertheless Collet, in the place alleged by them, does not have those things; but he merely hands down that, for casting delay upon this very evil abuse, which in some parish had very widely prevailed, it was agreed between the pastor and the Bishop that thereafter one would not proceed to the proclamations of marriages which such a crime had preceded unless the Bishop had first been consulted. For otherwise, the question being now omitted whether the power of a Bishop extends so far that he can render invalid a promise of marriage, there will certainly be those who easily see that from that certainly most imprudent counsel this one fruit alone can be expected: that wicked men, now certain of impunity for the crime, may take a bolder spirit for seducing weak women, who otherwise, carried away as they are accustomed to be by a most burning desire of marrying, will never fail to give fullest faith even to the lying promises of seducers.

** The VV. wrote fifty-four columns (pages 334-361) against this Note; to which three others must be added, which elsewhere (pages 570-371) the same VV. opposed to the last part of this Note. Would that that heap of things brought some light to the questions!

First of all let us dispatch that which pertains to the last part of this Note. The VV. fasten the charge of falsehood (page 371) in these words: By no means does St. Doctor say that somewhere it was sanctioned by episcopal law that promises of marriage for obtaining defloration should be judged invalid, as P. Ballerini falsely attributes to him... St. Alphonsus, with Collet, brings forth only pious wishes and proposes a remedy by which seduction of virgins under hope of marriage may be met in a better way. - Resp. P. Ballerini, for the sake of reverence, had written, "there are those who narrate," and had kept silent about the author of the narration; but the lust of contradicting drove the VV., although there was no need, to publish abroad that St. Alphonsus was the author of the narration. Moreover behold the words of St. Doctor Alphonsus (Lib. 3, n. 641), which the VV. also report (page 370): Here in passing it is useful to note with Tournely, that is, Collet, that it would be very useful for avoiding sins of this kind if promises of marriage for obtaining defloration, even perhaps confirmed by oath, were declared invalid by Bishops; as the aforesaid Author reports was reduced to practice in a certain Gallican diocese with great profit. Now I ask: what is that which, from the testimony of Collet, St. Alphonsus says was reduced to practice in a certain Gallican diocese? Were merely pious wishes elicited from the heart? Or is it not most openly said to have been reduced to practice that in a certain Gallican diocese promises of marriage, even perhaps confirmed by oath, had been declared invalid by the Bishop? But Collet does not say this. Therefore rather than the VV. accusing P. Ballerini of falsehood, let them in the new edition of St. Alphonsus which they are preparing compose the words of St. Doctor more suitably, so that they may fully answer to the truth.

But nearer to the proper argument of the Note. As regards rule 18 of law: That is not strengthened by the passage of time which by law does not subsist from the beginning, the VV. contend (page 337) that it is falsely asserted by P. Ballerini that no one of the older authors alleged it for this matter; and they object that St. Alphonsus says (Lib. 3, n. 712): It is a common rule that that which does not subsist from the beginning cannot grow strong by passage of time. - Resp. It is a common rule, as all rules of law indeed are most common: I concede. Therefore it is alleged by the older authors for this matter: I deny the consequence. Therefore let the older authors be produced who used that rule in this controversy.

2. The VV. contend (pages 337-338) that P. Ballerini says undeservedly that this rule is brought forward altogether outside the matter. But with Comitolus they object that in the case a stipulation always precedes; and since the stipulation is null before the disgraceful deed, it ought to be null even after the deed. For the same matter they describe an entire paragraph of De Lugo (Disp. 22, n. 19), which is alleged above in the Note. Resp. That paragraph of Lugo is alleged in the Note for this reason alone, that it intimates the common doctrine, namely that innominate contracts are not perfected except by delivery having followed, and by the contract having been completed on the part of one. For the things Lugo discusses there concerning the special contract of exchange pertain nothing here. I said that the common doctrine is intimated there, which Molina sets forth thus (Tr. 2, De Contr., Disp. 254, n. 14): Finally, other contracts are those which are perfected by the thing itself, or by delivery, nor before that are they judged consummated... And the same is true concerning the other respective innominate contracts. And Laymann (Lib. 3, Tr. 4, Cap. 3, n. 2): Contracts are perfected by the thing, or by delivery, which by their very name signify giving or doing... Such are exchange, lending... and every innominate contract. But the contract about which there is speech for us here is, by the consensus of all, an innominate contract. Therefore it is perfected, not by stipulation, as Comitolus reasons sophistically, but by the thing itself or by delivery at least of one part. But what it is for a contract to be perfected, it is better to hear from Lugo, to whom the VV. were pleased to appeal. Thus therefore Lugo (Disp. 22, n. 15): It must be known that contracts are perfected in four modes; but the speech is concerning perfection not as to effect, but as to the essence of the contract itself. For as to effect, a contract is then perfect when that to which it obligated is fulfilled; nevertheless this is not something belonging intrinsically to the contract itself, but is its effect... Now therefore we speak concerning the intrinsic complement by which a contract in itself is called perfect and essentially entire. Whence thus: that by which a contract is perfected is of the essence of the same contract; but any innominate contract is perfected by things, or by delivery; therefore delivery pertains to the essence of this contract. But a contract does not subsist without its essence; therefore this contract does not subsist before the delivery of the thing. Therefore Rule of Law XVIII is alleged outside the matter, when it is supposed that here this contract consists in any preceding agreement. - The Salmanticenses (Tr. 14, C. 1, n. 5) propose this common doctrine of all no less clearly, saying: You will ask in how many modes contracts are perfected. And we speak of substantial perfection as to the substance of the contract, when namely all necessary things are placed, so that it subsists according to its own species. Therefore without those things by which a contract is perfected, a contract in no way subsists. Hence as regards the present matter the Salmanticenses (ibid.) rightly conclude: Contracts which are perfected by delivery of the thing are not judged to be celebrated before delivery of the thing... nor do they beget any obligation. Even Concina himself consents in this, who, after he premised (De Contr., Disp. 1, C. 3, n. 1) that certain contracts are perfected by delivery of the thing, soon (ibid., n. 2) subjoins that contracts which are perfected by delivery of the thing induce an obligation binding the contracting parties not before, but after, delivery. But, as has been said, an innominate contract, of which kind the present one is, is perfected by delivery of the thing. Therefore both the contract and the source of the obligation proper to this contract are imagined outside the matter to subsist before delivery of the thing. Therefore Rule 18 of Law is alleged outside the matter. Reiffenstuel, among others, explains the legitimate sense of this Rule thus (Tom. VI, ad Reg. 18, Iur. in VI, n. 4): The true sense of the Rule is the following: "No act which, while it is perfected, is by the law itself invalid and null, grows valid by the mere passage and lapse of time without another support, so as to have the force and effect of an act validly performed from the beginning." But, again, this innominate contract is perfected by delivery. Therefore the nullity of the preceding promise is objected in vain. And concerning this enough.

3. The VV. contend (pages 338-340) that Roncaglia is alleged not falsely, but rightly, for the sentence which denies the value of the contract about which we are treating; which certainly ought to seem wondrous, since his words alleged in the Note for the affirming sentence are clearer than sunlight. But the VV. object that Roncaglia said those things with attention to natural law; but that he thinks otherwise if something is given against that which positive laws dispose. Hence they bring forward this resolution of his (Tr. 13, De Restit., C. 6, q. 4): It seems that what has been given by a donation illicit and reproved by the laws can in no way be retained. - Resp. That Roncaglia excepts from the general thesis which he had most clearly established a donation reproved by positive laws detracts nothing from the truth of his thesis, indeed confirms it according to the saying: The exception confirms the rule. Moreover, in reality nothing can be devised more wretched than that paragraph of Roncaglia. But to dwell upon these things now does not pertain to the matter.

4. Likewise the VV. contend (pages 340-342) that Comitolus is alleged not falsely, but by right, for the same denying sentence. For he holds that all agreements concerning a shameful thing, except prostitution, are void. - Resp. The thesis of the Author, to which the Note is subjoined, is most general, concerning a thing accepted from a shameful contract; and Comitolus is alleged for this thesis, as the VV. themselves advert. Therefore, since, by the admission of the VV., Comitolus as regards prostitution in some way affirms that the accepted price can be retained, by that very fact he is falsely alleged for the general denying thesis. Moreover, whatever finally may be the sentence of Comitolus concerning this question, that immense heap of sophisms and of false allegations and assertions is certainly in no way equal to conciliating any probability, by which he so confounds all things above and below that even the very proposition of the question bears absurdity before itself, when he asks: Whether from a shameful promise or some stipulation any obligation arises. For no one dreamed that, in innominate contracts of this kind, the perfection whence there is obligation must be sought in words, of which kind is a promise, or in stipulation. And indeed the VV. did not doubt to defend even the discordant reason on account of which Comitolus said that the price must be paid to the prostitute, although even Comitolus himself, fearing the novelty of that paradox, wrote (l. c., n. 13): It follows that I myself should explain my sentence, whose explanation I fear may seem less probable to someone by its very novelty. Nor does it touch the matter that the VV. bring forward from Lessius, saying that the mind of the laws is that he who gave should not be able to recover, as a penalty for the crime. For the laws concerning which Lessius is speaking there pertain to the question where the cause of each, namely both of the one giving and of the one receiving, is shameful, and they define that the possessor is the stronger in such a way that no action is conceded either to one seeking what was promised or to one repeating what was given. Moreover, as Lessius there also adverts (Lib. 2, c. 14, n. 58), the laws concede to a prostitute an action for acquiring the price. Therefore the argument about which Lessius is there speaking is another. And here it will be useful not to have omitted that even Concina, who otherwise names Comitolus with great honor, could not but note the false testimony of Comitolus, about which it was said in the Note. Paulus Comitolus, says Concina (De Iust. et Iur., Disp. 2, Cap. 10, n. 8), contends that this is the sentence of all the Doctors, with two exceptions, Soto and Cajetan... The Most Distinguished Comitolus is mistaken when he ascribes the opposite sentence to Soto and Cajetan only. For it is ascertained that the greater part of Theologians comes together in the same opinion. But concerning this writer, enough and more than enough; one must come to the allegations of others.

5. And first indeed the VV. complain (page 342) that in the Note the allegations of Adrian, John Medina, and Navarrus, which St. Alphonsus also reports, are said to seem gathered from Comitolus. But falsely, they say (page 342), is this asserted. - Resp. In the Note this is said by opining; for the word "seems," as St. Thomas says, belongs to one opining. But this could lead one to this opinion, that in each place, both apud St. Alphonsus and apud Comitolus, this erroneous allegation of Law is seen: L. Mercedem C. De Condict., when one must read Mercalem, as the distinguished P. Haringer corrected well in the Ratisbon edition, 1846. Moreover, since this same erroneous allegation of Law recurs apud Concina (l. c., n. 7), but the words by which both this citation of law itself and the allegations of Adrian, Medina, and Navarrus are reported apud St. Alphonsus are much more similar to the words by which they are alleged by Concina than to those which Comitolus uses, it indeed seems more probable that those allegations were drawn from Concina rather than from Comitolus.

6. Moreover the VV. (ibid.) charge as a crime that in the Note Comitolus is represented as criminal, because it is said there that in these allegations a deed worthy of Comitolus is discerned. - Resp. Facinus for the Latins, just as the Greek andragathema, means some distinguished deed, an action worthy of a strong man. And indeed among the Latins it is accepted both in a good and in an evil part; but from this it is wrongly concluded that someone is represented as criminal when some facinus is attributed to him; for the word facinerosus is used only in the evil part.

7. But to come to the alleged Authors, there are two things which the VV. (pages 342-343) advert as regards Adrian: 1. that Comitolus affirms only this concerning Adrian, that prostitutes can retain what has been accepted, not as a debt from justice, but only as donated. - Resp. Let it pass. For first, although Comitolus uses a false reason in some way, nevertheless he does not reject, indeed he admits, that Adrian holds the thesis against which he is alleged, namely that what has been accepted from a shameful contract is not to be restored. Therefore Adrian is wrongly alleged against the thesis. But then it is false that this reason is given by Comitolus; for, as the VV. themselves have in the same place, according to Comitolus the prostitute accepts as gain attributed to her by the law, nor does Comitolus attribute to Adrian this reason, which he says was invented by himself.

The VV. add 2. (page 343) that Adrian brings forward several cases in which he teaches that restitution must be made on account of injured justice; but that there is no need to seek out the senses of Adrian concerning prostitution, which otherwise St. Alphonsus excludes. Resp. That restitution must be made on account of injured justice is not, and cannot be, the question concerning which St. Alphonsus said (Lib. 3, n. 712) that there is a twofold probable sentence; for that what would be retained unjustly cannot be retained is certain apud all. And if indeed in this place St. Doctor is not treating of gain injuring commutative justice, nor again of gain from prostitution, and otherwise not even the VV. themselves find anything apud Adrian which looks to gain from an act indeed shameful, but nevertheless not unjust, to what purpose therefore does St. Alphonsus allege the text of Adrian, § Restat inquirere, where there is treatment of concussion or extortion, that is, of sin against justice? Therefore let them concede that Adrian is brought forward gratis and outside the matter, and that St. Alphonsus transcribed that allegation in good faith, whether from Comitolus or from Concina matters not. But moreover the VV. would have served the rights of truth much better if they had not kept silent that Adrian thought plainly the same thing concerning any other shameful gain not injuring justice as he did concerning gain from prostitution, and therefore in the question which St. Alphonsus treats he held a sentence plainly opposite to that which St. Doctor ascribes to him. And indeed Adrian, in the question also alleged by Comitolus, which begins Oritur alia quaestio (fol. 76, Roman edition, 1522), after he said that a prostitute licitly can hold what she has received, and can dispose of those things at her judgment, and that the same must be held concerning a non-public prostitute, subjoins: I think the same concerning those who by their crimes have procured for themselves the favor and gifts of others. Here, as is plain, the speech is about delicts diverse from prostitution. Why therefore did the VV. conceal this? Again, in the Note are seen the things which Adrian responds to the texts of law by which shameful pacts are declared void. For he responds: Nor does the text there openly say that a promise made to a man on account of a PRECEDING shameful cause is not valid, BUT ONLY... CONCERNING A FUTURE SHAMEFUL CAUSE... It seems otherwise when the baseness has already passed and is as it were purged. Moreover Adrian here is speaking neither of a crime against justice, because elsewhere he denies that unjust gains can be retained, nor of prostitution, for which even Comitolus admits that an action for recovering the price was not customarily denied by the judge; therefore he treats of gain received from other shameful deeds besides prostitution. Why therefore did the VV. conceal this also? Therefore let them concede that St. Alphonsus in good faith alleged Adrian for an opinion whose contrary Adrian teaches; and at the same time let them concede that from allegations of this kind no probability accrues to opinions, except a fictitious one.

8. Let us pass over to John Medina, concerning whom, no less than concerning Adrian, the VV. leave to be desired that sincere zeal for truth without which no discussion of this kind ought to be.

Concerning Medina, in the Note subjoined to the Author, the only care was to touch that particle from which certain persons had taken occasion to oppose him to the common sentence of the Doctors. Therefore it is better here to set forth his mind; for from this every doubt will vanish. And in the first place there is certainly something in which Medina seems to depart from others; but that does not look to the question whether shameful gain can licitly be accepted and retained, but merely to rendering the reason; just as St. Alphonsus (l. c.), while he follows the common sentence, which he calls more probable, nevertheless preferred to adopt another reason than certain others had brought forward. Therefore Medina (Cod. de Rest., page 133, Ingolstadt edition, 1581) thinks that the title of the contract ought not to be called the price of the wicked work, but rather donation. Thus he: A prostitute, neither public nor hidden, can receive or retain the price of prostitution as a price corresponding to that wicked work, unless another cause concurs, such as the donation of the one giving, who freely wishes to donate to her, notwithstanding that the work itself is shameful and is the cause without which there would not be such a donation. Nor does the sentence of those please me who say that a prostitute can licitly receive the wage of prostitution by way of wage, even the way of donation being excluded. Thus Medina, namely lest he should say that sin is sold. Nevertheless, since the notion of a donation which imposes a burden upon another is absurd, Medina finally explains the matter more or less as others do, and adopts the reason which afterward also pleased St. Alphonsus. For (page 134) he thus objects to himself: But you will object, because in gain from prostitution there does not seem to concur a liberal donation, but another contract of leasing, by which the body is leased for fornication use, or an innominate contract, namely, I will give so that you may do or consent in this, as appears in the example cited above from Genesis, in which Judah and Tamar expressly agreed concerning the price. What does Medina say to these things? Namely, it was necessary for him to concede the objections, although he studies somehow to reconcile those things with the preceding theory. Thus therefore he himself: It is answered: Grant that it is so, that such a contract and pact intervenes; still in that contract there is mixed a donation, such as is found in the act of buying or leasing, in which someone gives a price exceeding the value of the thing, in whose giving neither fear, nor coercion, nor ignorance intervenes, but spontaneous will. Let us not now ask in what way, according to Medina, the part which holds the place of wage can be separated from that which holds the place of donation; meanwhile this is manifest, that something is attributed which has the account of price or wage. Therefore Medina finally receives himself back to the common sentence; but the explanation which is added by him finally looks to this, that whatever is given not be called the price of sin, because, as he himself repeats with others, sin, as such, is unsellable. For this reason St. Alphonsus also (l. c.) wishes that the title of the price not be sin, but the work, as laborious, as ignominious, as dangerous.

Nor let the VV. object here that these things are said by Medina concerning prostitution, which St. Alphonsus excludes in the question, but not concerning other delicts. For then Medina also concerning other shameful causes (fol. 134) adds these things: From what has been said it is plain how procurers, actors, flatterers, and the rest hired for wicked works, as for killing, striking, defaming, and inflicting other injuries, can be excused from the debt of restoring things shamefully acquired. Therefore let the VV. concede that Medina also in this question is wrongly alleged by St. Alphonsus for the opposite opinion, from wherever finally St. Doctor drew that allegation; let them also concede that the allegation of Medina cannot conciliate probability to that opinion, except only fictitious probability. But it is not worth the labor to be detained by the very slight little questions with which the VV., the knot of the controversy having been omitted, dwell at greater length around the distinction of a hidden or public prostitute.

9. As regards Navarrus, the VV. write (page 346): P. Ballerini perversely alleges the sentence of Navarrus, as will be permitted to see from the following propositions. - Resp. The few things said in the Note concerning the sentence of Navarrus are contained in these: 1. that what has been accepted by cause of crime or shameful work can be retained even in the forum of conscience, nor is it necessarily to be restored, contrary to what St. Alphonsus affixes to Navarrus himself; 2. that the reason which all give concerning this doctrine with St. Thomas did not please Navarrus. But the VV. produce nothing through those five columns of theirs which contradicts these things.

And in fact, I. from Man., C. 17, n. 32, the VV. object these things of Navarrus (l. c.): Although the pact or agreement by which something is given on account of crime is not valid in that form which the parties alone pretend to make, nevertheless it is valid as a certain virtual donation, or as a certain act of holding as abandoned. - Resp. These things confirm that which is said in the Note, namely: 1. that things accepted on account of crime can be retained; 2. that Navarrus, the reason brought forward by others having been left behind, devised another, whatever it may be.

II. The VV. bring forward (l. c.) from n. 38 that Navarrus does not admit what Soto has, namely, that foul work, although it is of no price insofar as it is sin, nevertheless can be estimated by price insofar as it is a certain thing accommodated to human use. And the reason of Navarrus is that every exterior work by which a sinner works sin is for the most part such, that is, accommodated to human use; and yet none of the Catholics ever said that some wage can licitly be taken for it, at least when it is intrinsically evil. - Resp. These things confirm that which is said in the Note: that the reason brought forward by others did not please Navarrus, who never fails to urge that sin, as such, is not sellable. Moreover the VV. would not have uselessly noted here, also for defending St. Doctor Alphonsus, the sophistical manner of acting in Navarrus, when from this, that no Catholic said that sin, AS SUCH, merits a wage, he concludes the same thing against Soto concerning a sinful work even insofar as it is useful. For does not the reason which Navarrus himself admits is commonly brought forward by all with St. Thomas, and upon which St. Alphonsus also insists, point to this? To the same point look those things which the VV. bring forward (page 347) from n. 40, where Navarrus concludes: Thus, therefore, the act of sinning, although it is in itself sellable, nevertheless joined with sin, which is indivisibly unsellable, cannot licitly be sold. Concerning which same matter Navarrus (n. 38) had already written: Although the argument of Medina does not conclude that that work is unsellable of itself and in the genus of being, nevertheless it concludes that it is unsellable in the genus of morals, because namely sin is of no price, as he had premised in the same place with Soto; and (n. 40) he adds in the same sense: although something is sellable in itself, nevertheless it cannot be licitly sold when it is mixed with an unsellable thing. Namely the string always wanders over the same thing: sin is not sellable; while otherwise, by conceding that the work of itself is sellable, he furnishes weapons against himself to the adversaries, who to the instance that that work is not sellable in the genus of morals perhaps will respond that the work itself is sold in itself and a price is exacted for the work, but not that the morality of the work is sold; and indeed if a work sellable of itself cannot be sold because, as Navarrus says, it is indivisibly joined to an unsellable thing, namely to the morality of the work, perhaps it will seem that not even a work rightly done can licitly be sold, lest namely its morality be sold; for good morality does not seem more sellable than evil morality. But now setting these things aside, it is sufficiently plain that the VV. have produced nothing thus far which shows that in the Note the sentence of Navarrus was perversely alleged.

III. Finally the VV. bring forward from n. 41 what Navarrus says must be counseled to those to whom something has been promised for a shameful work. And this had already been indicated by us in the Note, namely, that the delict not be the principal cause of seeking the things promised, but the impulsive cause and occasion without which he would not seek. To this also pertains what the VV. bring forward from n. 40, where Navarrus, speaking of the sentences retracted by himself, warns that it is wrongly accepted as if he were admitting that what was promised for a shameful cause can be sought. Wherefore neither as regards this can the VV. accuse the Note, as if the sentence of Navarrus is there alleged perversely. On the contrary, it was to be desired that they not cut short the response of the same Navarrus to him who objected to him his retraction. Someone, he says (n. 40), here objects that I first held in the Spanish Enchiridion that married women and women consecrated to God sin by accepting shameful gain for the cause of shameful concubitus; the VV. do not rightly substitute here, "cause of fornication." Second, etc. And to this first head he replies: It is answered first, that it was superfluous to note the first..., since I myself assert with full mouth that I made the aforesaid change. And in fact just as (n. 34) he writes concerning a prostitute: What has been accepted by a prostitute on account of the shameful cause of fornication is not necessarily to be restored even in the forum of conscience; so he extends this to other crimes (n. 31), saying: A prostitute is not held from precept to restore that which she accepts as the wage of prostitution, and neither are other women, unmarried, married, or sacred. Likewise (n. 41), speaking of a homicide who, enticed by promises and with part of them accepted, had committed the crime, We counseled, says Navarrus, that he take care lest he seek the remaining things, namely those promised but not yet paid in part, as owed to him by legal justice; but concerning restoring those things which he had accepted, Navarrus, cohering wholly with himself, is altogether silent. But this had to be noted, so that it would be clear that Navarrus, where he denies that things accepted on account of a shameful cause are to be restored, established this not only concerning prostitution, but also concerning other crimes, about which St. Alphonsus discusses.

Therefore let us conclude concerning Navarrus that which we said concerning Adrian and Medina: namely, as regards the controversy whether what was accepted for other shameful causes besides prostitution can licitly be retained, Navarrus is alleged by no right, and therefore an allegation of this kind cannot add probability, except fictitious probability.

10. The VV. carp at (page 348) the example brought forward in the Note, of the shoemaker making shoes by wrongdoing on a feast day, as if the shoes cannot be the cause, but only ought to be called the occasion of paying the price, as Navarrus said concerning crimes; and they subjoin: The example does not fit, because it concerns a work which in itself is not evil and illicit, and the shoemaker has a just title for exacting the price of the work, namely a just and valid contract which obliges the other party from justice to paying. - Resp. I ask: Is the contract of making shoes by wrongdoing on a feast day valid or void? If it is called valid, therefore will it oblige the shoemaker to sin? If void, by what title does the shoemaker exact the price? Therefore one of two things must be defined: Either with the common sentence it must be said that an innominate contract of this kind, I give so that you may do, is perfected only by delivery of the thing or placing of the work, and after the fact an obligation of paying is present, although the other sinned in placing the work, and the work is judged worthy of a price, as St. Alphonsus says, insofar as laborious; or with Navarrus it must be said that the work indeed is in itself sellable, but since it is joined indivisibly with an unsellable thing, that is, with sin, by that very fact, as being of no price, it cannot licitly be sold; therefore a sinful work, as Navarrus concluded, cannot be the principal cause of seeking the things promised, but only the impulsive cause or the occasion without which it would not be sought. Namely the VV. here use common principles in reasoning; but one who uses common principles can with difficulty render a reason for the anomalies of Navarrus, who in this controversy professes without circumlocution that he departs from the common principles of all. Moreover the VV. find a just title of exacting in the shoemaker for this reason, that the labor of sewing shoes is suitable matter of a contract. But indeed is the granted use of the body not suitable matter of a contract? Certainly we all say that this is the matter of the matrimonial contract, and indeed in such a way that if a spouse denies this use to a spouse, or makes availability of himself or herself to another besides the spouse, we say that he or she sins gravely against justice. Therefore Navarrus also could not deny that this work of itself is sellable.

11. The VV. are greatly moved on account of those things which are said in the Note concerning Collet, and through six columns (pages 348-351) they undertake, as they say, to vindicate him from the undeserved rebukes of P. Ballerini. But in this matter there intervenes no light difficulty. For the things which are said in the Note are from Collet's Paris edition; but the VV. use the Venetian edition, which differs greatly from the Paris edition as regards this argument; indeed the VV. themselves (page 349) warn that there is a twofold work written by Collet. And if the matter has itself thus, must their rebuke of those things which stand forth in the Paris edition therefore be held undeserved because those things are read differently in the Venetian edition? Moreover as regards our question, what now matters to know is not whether Collet is worthy of some rebuke, but whether anything can be extracted from him for the cause. But he brings forward nothing which is of any moment; indeed the times through which something was deferred to the authority of Collet and writers of this flour have now passed, since divine benignity, especially through St. Doctor Alphonsus, has led moral discipline back to the older way. Add to these things that Collet restricts the question whether shameful gain can licitly be retained to prostitution; concerning which St. Alphonsus (l. c.) writes: As regards prostitutes, it is common and certain among the Doctors that they can retain the price of the prostitution furnished. What probability, therefore, except altogether fictitious probability, can be drawn from the allegation of Collet apud St. Alphonsus himself, when Collet does not touch even the least part of the question about which St. Alphonsus treats?

12. As regards Lessius it had been said in the Note that he is alleged in vain apud St. Alphonsus, so that the denying opinion may be judged probable, both that what was accepted for a shameful cause can be retained, and that a promise on account of a shameful cause is valid. The reason was given: because Lessius affirms this only concerning crimes which are punished by positive law; which indeed pertain nothing to the general question according to natural law. But behold, the VV. (pages 351-352) aim against the Note an accusation of false allegation or interpretation, and conclude somewhat charmingly (page 352): If false allegation or interpretation of some author were a crime, as P. Ballerini said above... the distinguished Professor himself certainly would have committed no light crime by this interpretation of Lessius.

Resp. As regards crimes of this kind, this is truly to be grieved over: that the VV., men otherwise excellent, prove themselves to all to be so foreign to the Latin tongue. But, these things being passed over, let us come to the matter.

The VV. allege (l. c.) these things from Lessius (Lib. 2, C. 18, n. 20): Note, however, that it is probable that he who promised something for an evil work WHICH IS PUNISHED BY LAWS, as for homicide, adultery, theft, and the like, is not held to fulfill the promise even after the work has followed, because it is the common sentence of the Doctors of each law, as Covarruvias teaches above, n. 6. And they subjoin: Therefore with clear and explicit words he speaks of crimes opposed to natural law... and therefore he says the very same thing that St. Alphonsus says: But for other crimes... there is a twofold probable sentence. - Resp. Lessius discusses an obligation which proceeds not from the law of nature, but from positive law; and therefore he apposed those words which are also seen expressed expressly in the Note: an evil work WHICH IS PUNISHED BY LAWS. But the thesis of St. Alphonsus is another, and not restricted by this special limit; therefore he also lists fornication among those crimes, concerning which Lessius is silent, because, namely, it is not a crime that is punished. For this reason Lessius soon subjoins: Although it can be answered that THOSE LAWS AND THE LIKE are to be accepted thus, that they signify that such stipulations are not valid before the fact, nor that after the fact is a right of seeking what was promised given in the external forum; but it is not their mind TO TAKE AWAY THE NATURAL OBLIGATION WHICH ARISES FROM OBLIGATIONS OF THIS KIND. See above, Cap. 14, Dub. 8. Thus Lessius, whose text therefore also ought not to have been cut by the VV. through the omission of these things, lest perhaps someone turn back upon them that no light deed which they themselves thrust upon P. Ballerini. And indeed this mind of Lessius shines out even more to one inspecting what that common sentence of the Doctors is, for which he sends one to Covarruvias. For in that place (In C. Peccatum, Part 2, § 2, n. 6) he proposes these conclusions: Before an exterior judge it is licit for no one to act for the wage or price of that work which has a crime to be punished by the same judge with an exterior penalty. But as regards the internal forum he subjoins another conclusion thus: Although repetition of that which was given on account of crime and misdeed is denied by human law, nevertheless the one accepting will not on that account be safe in the judgment of the soul if otherwise, either by reason of the matter, which was not sellable, or from this, that the agreement was iniquitous, he is held to restitution; by which words he teaches that what has been accepted can be retained, unless perhaps justice was injured in it. For otherwise, he himself subjoins, from this it would follow that an artisan or worker hired to make that which exists forbidden by law... would be held to restitution of that which he accepted as wage for the labor; so also a soldier hired for an unjust war, and one which he himself certainly knows to be most iniquitous, would be held to restore the wage furnished to him by right of hiring; and nevertheless I would condemn neither the artisan nor the soldier to restitution..., nor would I compel him in the judgment of the soul, nor do I think he can be compelled. A thousand examples certainly could be proposed for these. Therefore let it be concluded that the question of Lessius is altogether diverse from the question of St. Alphonsus, and therefore this allegation of the same contributes nothing to asserting the probability of the opinion for which he is alleged.

Again concerning Lessius the VV. write (l. c.): Cap. 14. Lessius treats the question, Whether what has been accepted on account of a shameful cause is necessarily to be restored. First he sets forth and approves the negative sentence; and then, n. 60, he adds: I say third. Although this sentence is truer, nevertheless the contrary, which judges that what was accepted on account of a crime punishable by the laws, unless it is judged donated, must be restored, is not improbable, as Covarruvias teaches above, n. 6... and it has reasons sought from the laws which are somehow probable. And after these things they immediately conclude that in the Note Lessius is falsely alleged or explained. - Resp. The same response as above recurs; and in fact Lessius there (Cap. 18, n. 20) refers readers to this place (Cap. 14, n. 8). Therefore one must answer that Lessius did not say these things with respect to natural law, but with respect to merely positive law. And in fact as regards natural law, he had absolutely established beforehand (n. 52) this thesis: I say first: If only the law of nature is considered, what has been accepted on account of a shameful cause, or on account of a work which is sin, the work having been fulfilled, is not necessarily to be restored, whether that work is against justice or not. Passing then to positive law, less absolutely he thus proposes (n. 56) the second thesis: I say second: It seems truer also that by positive law this is not necessarily to be restored. Finally, after the objections against this second thesis have been solved, he thus proposes (n. 60) the third thesis: I say third: Although this sentence is truer, nevertheless the contrary, which judges that what was accepted on account of a crime punishable by the laws... must be restored, is not improbable. Moreover those words: Although this sentence is truer, manifestly refer not to the remote first thesis, which treats the matter according to natural law, but to the proximate second, which treats of positive law; and this is confirmed from this, that the third thesis is restricted by Lessius to crimes punishable by the laws, which has no place as regards natural law; and finally the same thing is proved from the citation of Covarruvias, to whom Lessius also sends the reader here. But St. Alphonsus disputes concerning this question according to natural law, and does not discuss the exception of crimes which are punished in the external forum by positive laws. Therefore the conclusion returns: that the allegation of Lessius apud St. Alphonsus can introduce a merely fictitious probability.

13. As regards Diana, whom the VV. (pages 352-354) rightly contend is alleged apud St. Alphonsus, the matter can be dispatched very briefly.

For 1. Diana (Tom. 8, Tr. 7, Rel. 59) makes the question only concerning prostitution, as is manifest also from the text produced by the VV. But St. Alphonsus (l. c.) disputes only about other crimes, not about prostitution, which from his controversy, as the VV. themselves not once admit, he positively and expressly excludes. Therefore the allegation of Diana pertains nothing to the question of St. Alphonsus. Therefore the probability which is sought from the allegation of Diana is altogether fictitious. - 2. Diana builds that probability, whatever it may be, upon the authority of Durandus, Medina, Navarrus, Comitolus, and Valerus. But from the premises it is plain that Navarrus, Medina, and Comitolus are invoked in vain; but as regards the sentence of Durandus and Valerus, as being in a manifest matter, not even the VV. themselves attempted to cast in doubts. Therefore as regards the extrinsic argument, no probability can be extracted except fictitious probability. - 3. But as regards intrinsic arguments, Diana himself, as we said in the Note, nor did the VV. dare to call it into doubt, elsewhere contends that the reason which he brings forward here is false. Therefore, as has already been said in the Note, Diana himself of himself destroys that empty probability, which rests upon no reason except a false one, nor upon any authority except a fictitious one.

14. The VV. advert (pages 354-355) that Concina, whom St. Doctor alleges with the foregoing, is passed over in silence in the Note; and then his doctrine from from the Compendium. - I reply. Concina rests upon allegations of which, partly in the Note, partly in this addition, it has been shown that there is no force, nor does he bring other reasons than those which are refuted by St. Alphonsus. Besides, as has already been said elsewhere, St. Alphonsus calls Concina most rigid; therefore here also it must be repeated that the vote of a rigid author is of sufficient weight when he grants indulgence, but not likewise when he condemns. Therefore it is superfluous to discuss Concina here.

15. Finally, when in the Note it was said: As regards the not ignoble Doctors whom Tamburini names, he in fact mentions no one else besides the usual Navarrus, Comitolus, and Valerius, whose names he says he borrowed from Diana; the Vindicators add (p. 355): Hence it will not be beside the point to answer this observation also; for besides the authors whom St. Alphonsus, Collet, and Concina cite for the same opinion, with prostitution excluded, there are in fact many not ignoble doctors who hold and defend this opinion either indistinctly, or as regards sins committed against justice, or at least judge it probable.

But two things occur to be observed concerning these points. For first, Collet, like Diana, treats the question only concerning prostitution; but the Vindicators expressly here seek authors for a question which excludes prostitution; therefore they seek beside the point the Doctors alleged by Collet. Then, indeed, no less beside the point are invoked the authors who either hold that opinion or judge it probable as regards sins committed against justice. For, passing over for the present in what sense this question is to be taken, and whether others have rightly understood the state of the question, meanwhile this is manifest: that this is an altogether special controversy, which must be decided by special reasons, and therefore at most can present an exception to the general thesis. But the present question is general, and is not concerned with some case perhaps excepted for a special reason. Therefore the four authors whom the Vindicators bring forth in this matter (pp. 356-357) are alleged beside the point.

Therefore there remain thirteen others alleged by the Vindicators (pp. 356-360), namely Henno, Amort, Trullench, Dicastillus, Mastrius, Bassaeus, Tamburini, Herincx, Wigandt, Billuart, Gotti, Struggl, and Cuniliati.

But from these thirteen eight must be wholly deleted, namely Trullench, Dicastillus, Mastrius, Bassaeus, Herincx, Billuart, Gotti, and Struggl. The reason is that, as the texts of these authors alleged by the Vindicators themselves openly make clear, these authors do not there set up the general question according to the law of nature, such as is the question which St. Alphonsus treats, but they treat the special question concerning a crime or evil work which is punished by laws; and when the controversy is thus proposed, they indeed, just as we saw Lessius affirm above, attribute some probability to the opinion received especially by jurists and Canonists, namely that, with positive law considered, the wages of a base work cannot be retained, but must be restored either to the giver, or to the fisc, or to the poor, concerning which the Doctors then dispute among themselves. But any probability whatever of this sort concerning this special opinion detracts nothing at all from the certitude of the sentence concerning the general question decided from natural law; rather, since it is an exception to the general thesis, according to the well-known saying, it confirms the rule to the contrary. Therefore.

In this matter that is less to be approved, that the Vindicators derive the sentence of Trullench from the Summary prefixed to dub. 2, ch. 17, book 7, where it is read: 1. Before the perpetration of the work neither the promisor nor the promisee is bound; indeed the promisor is bound to revoke the promise; but once the evil work has been perpetrated, he is bound by justice to pay what was promised; 2. the opposite is probable. These last words the Vindicators eagerly seize upon (p. 358), as though there that opinion opposed to the general thesis were called probable. But the matter is not so. For what in section 2 pertains to that rubric of the Summary is this: Lessius says it probable that he who promised something else for an evil work which is punished by laws, as for adultery, homicide, theft, and the like, is not bound to fulfill the promise even after the work has followed. Therefore, as was said above, here only an exception is proposed concerning a special case, not according to natural law, of which there is question in the first thesis, but according to positive laws; but the contradictory of the proposed thesis is by no means there declared probable. Nay rather, Trullench, after Lessius, adds in the same place that the mind of these laws is not to remove the natural obligation which arises from onerous promises of this kind.

Five of the authors whom the Vindicators brought forth remain; and of these Henno and Amort truly stand for the opposite opinion. But by what reasons do they prove the matter? Let Henno be heard (De Restitutione, disp. 6, q. 5, concl. 1): "Those contracts," he says, "inasmuch as they are onerous, ought to oblige both the promisee and the promisor.... But they do not oblige the promisee, since no one can be obliged to sin; therefore neither do they oblige the promisor." Thus the text of Henno related by the Vindicators themselves. But this is, as is clear, either to have been ignorant of, or to have set aside, the first elements of this matter, which teach that innominate contracts of this kind are not perfected by promise, but are perfected, and therefore beget obligation, only after the handing over of the thing, or of the work, or its performance. Are these things such as to give even the least probability to the thesis? But Amort also fights with the same arms (tract. 6, sect. 1, q. 7, prob. 3): "If contracts," he says, "concerning a base work were valid and obligatory, then they would oblige either both of the contracting parties, or one only; neither can be said; therefore." He proves the minor. "If both are said to be obliged, then it would be manifest that one party of the contracting persons is obliged to sin; but this implies contradiction; therefore." Thus Amort, trampling upon the first principles of moral discipline. But that some opinion may be judged in some way probable, even St. Alphonsus requires that it rest upon some grave and solid reason. But is that a solid reason which has its birth from forgetfulness of the first principles? Let us therefore conclude, and indeed with St. Alphonsus as guide, that these authors add as much probability to that opinion as those sophisms have of value.

The remaining ones from the thirteen alleged are now these three, namely Wigandt, Cuniliati, and Tamburini. And concerning Tamburini it is not relevant now to repeat those things which are said in the Note, namely that he fortified his assertion with no authority except false authority; and indeed this has here been confirmed more evidently by the fact itself. This may be added, that he no less falsely joined Valentia to other false allegations. For Valentia, who (In 2. 2, disp. 5, q. 7, punct. 5, sect. 2) defends the common sentence, never said that the opposite opinion is probable. Moreover Valentia discusses only this: whether public prostitutes can accept and retain something as wages for a base act. Therefore Valentia would be alleged here beside the point, since the controversy of St. Alphonsus expressly excludes the case of prostitution, as we have already said several times. I would add that it scarcely appears how the Vindicators, while they gather authors in order to show that Tamburini rightly said that not ignoble writers are not lacking, and so forth, enumerate Tamburini himself among these writers.

As regards Wigandt, he (tract. 8, exam. 4, n. 54) can seem to have attributed some probability to the opposite opinion to the extent that he says the common sentence is more probable; for in fact he does not even mention the opposite opinion, nor does he suggest that there is a twofold sentence concerning this matter. But some weight could be conceded to this argument if it were granted to us to divine that Wigandt perhaps was led by some new reason, or by some vote of authority still unknown to us. But so long as that does not appear, surely it will be permitted to hold that assertion of Wigandt in that place in which something gratuitously asserted is held.

Finally Cuniliati remains, to whom we shall join Mastrius also; since each, no differently than Wigandt, could be thought to have judged the opposite opinion probable because they too call the common sentence, which they defend, more probable. But whatever vote of Mastrius this is betrays itself as sufficiently miserable. For the opposite opinion he brings that poor argument which we have already seen his confrere Henno use, and after them also Amort. Here is Mastrius's argument, as it also stands in the Vindicators (p. 358): A contract concerning a base thing before the deed is null; otherwise it would oblige one to sin...; therefore also after the deed. But what will anyone answer to this argument, if he is not ignorant of the first elements concerning contracts? He will say: I concede the antecedent, and I deny the consequence; because innominate contracts of this kind do not consist essentially and are not perfected by words and promise, but by things, or by the handing over or performance of the work, and only then do they assume the force of obliging.

Nor must the allegation of Cuniliati be called less miserable, which the Vindicators (p. 360) say that they took from the Venetian edition of the year 1796. For first the true Cuniliati (tract. IX, ch. V, sect. 10) teaches the common doctrine absolutely, and casts in no mention of the opposite sentence. But the things which are brought forward by the Vindicators are not Cuniliati's, but belong to an addition which manifestly appears to be an assumption by another hand. And indeed this unknown author of the additions, if he departs somewhat from the sentence of Cuniliati, does not conceal the reason by which he was moved. For there see the usual allegations: of Comitolus and Collet, together with the condemned work of Henry of St. Ignatius, and the unknown anonymous author of the Collationes Parisienses alleged by Collet; to these he then appends in summary form what Concina and Antoine said concerning this argument. What therefore is this worth, resting on foundations of this kind? But then, as regards the cause of the Vindicators, they limp from another side. For we have already observed above that both Concina and Collet, with their own, dispute only concerning prostitution. But the Vindicators seek probabilities from writers not ignoble, not in the cause of prostitution, which they themselves with St. Alphonsus maintain does not pertain here, but in the cause of base profit sought and received from other crimes. Therefore these allegations also are not fit for producing probability, unless fictitious probability.

Therefore let it at last be permitted to conclude that through those fifty-four columns the Vindicators have brought forward nothing at all suitable for weakening what was said in the Note, namely that the probability of the opinion which St. Alphonsus also sets aside is wholly fictitious, inasmuch as it rests upon no reason except a false one, and upon no authority except a feigned one.

Q. 7. If a man has given something to a woman for seducing her, whether she, consent having been denied, can retain the thing?

Resp. Affirmatively, because no pact concerning the sin to be perpetrated intervened, and therefore the donation is to be held altogether liberal, since the woman promised absolutely nothing on her part. - St. Lig., n. 712, and others commonly. De Lugo, however (Disp. 18, n. 50), thus tempers the matter: It is also certain to me that it is not a sin against justice, although the woman has the intention of not consenting to the desired baseness; because the acceptance of the gift does not include a tacit or express promise of consenting, but includes only a moral obligation of gratitude in licit and honorable things. But the too credulous lover, who hoped for more than he ought, must impute it to himself. Nevertheless it is difficult for her to be excused from the sin of scandal and against charity; because the acceptance itself is the cause that he gives, and it is certain that he would not give without a new sin. - See Casus, n. 762 and following.

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.

252. 1. Since a contract is a mode of acquiring or transferring dominion, as was said above, whatever falls under dominion can be suitable matter for a contract. But since dominion over some thing or action can be limited, to that extent the faculty of contracting is also limited.¹¹ The conditions required that some thing or action be suitable matter for a contract are enumerated as follows: the matter or action must be possible, existing, proper to the contracting party, estimable by a price, honorable, and lawful:

a) possible, both physically and morally. For no one can oblige himself to the impossible. Hence if the thing is physically impossible, the contract is null (as happens, e.g., if someone sold a determinate horse which suddenly dies from being struck by lightning). But if the thing is morally impossible, i.e., exceedingly difficult, the contract is not valid unless it was expressly stipulated that the thing was to be furnished in any event whatsoever. - If the matter of the contract is divisible and cannot be furnished in its entirety, the obligation of furnishing the possible part remains, unless it is evident from the mind of the contracting parties that they wished to oblige themselves either to the whole or to nothing. One who by his own fault brings it about that the matter of the contract is rendered impossible, e.g., an architect who through culpable carelessness does not finish a building at the appointed time, is bound to repair the damage thence arising for the other contracting party.

b) existing in reality or at least in hope. The reason is that a right cannot be transferred in a thing which does not exist and is not hoped ever to exist. In stock-exchange speculations, great injustices are sometimes committed when certain things are sold as existing which nevertheless exist either not at all or only in hope.¹²

c) proper to the contracting party. For no one can transfer to another a right which he himself in no way has. Hence a sale which a thief makes of another's thing unjustly taken is invalid. But if someone has a thing of his own in hope, he can sell this hope, unless positive laws invalidate such a contract. - When something is already owed to another from justice, a second contract cannot be made concerning the same thing with the same person. Thus, e.g., a judge cannot enter a contract to receive something for pronouncing a just sentence. For this obligation already exists from the office undertaken; therefore he cannot dispose of it freely; but if he nevertheless disposes of it, he acts concerning a thing which is no longer his. I say, however: with the same person, because a second contract can be made with a third person to whom nothing is owed from justice. E.g., someone hired by Peter to carry a message to Rome can exact money from Paul in order to conduct some business of Paul's there, because, even if Peter has paid all the expenses of the journey and the salary owed, Paul nevertheless thereby acquires no right that Peter's agent should transact some business for him. - But if something is owed from charity or from another virtue, a contract made concerning this thing is valid but illicit; e.g., to show the right way to one who is lost is an act of charity, but if someone exacts money for this service (without labor being furnished), he sins against justice.¹³

d) estimable by a price. A contract cannot be made concerning a thing which is not estimable by a temporal price. This indeed especially has place in onerous contracts, and: 1. in spiritual things, which cannot be sold for a temporal price (it is lawful, however, to exchange one spiritual thing for another; e.g., to say a rosary for another under an agreement that the other hear Mass); 2. in contracts concerning a base thing; for since a base act cannot be estimated by a price, all contracts concerning an illicit thing are invalid from the beginning.

¹¹ Cf. above, n. 15 ff., on the limited dominion of wives, children of a family, etc.

¹² E.g., forward transactions (Termingeschäfte).

¹³ Cf. Billuart, De contract. diss. 1, a. 9.

253. e) honorable and lawful. For no one can oblige himself to anything evil, nor demand that an illicit thing be done. Hence all authors teach that a contract concerning a base thing, before the evil work has been committed, produces no obligation, and therefore neither contracting party is bound to fulfill the stipulated work; indeed, both are bound to withdraw from the contract entered. But a great controversy exists among theologians as to whether, after the evil work has been committed, the other contracting party is bound to pay the stipulated price.¹⁴ It is certain that prostitutes can retain, and indeed exact, their shameful gain after fornication has been committed. Thus St. Thomas expressly teaches with the most common opinion,¹⁵ and it is also evident from the response of the Sacred Penitentiary of 22 April 1822.

Question: "A prostitute who obtained a large sum of money by granting the use of her body to various lovers has very recently been converted. Is she bound to restore the entire price of her crimes, or only a part, or to expend it on pious works? And if she is bound to one or the other, is it from strict justice or only from counsel? N.B. This prostitute, if restitution were made, would not be reduced to extreme poverty."

The response was: "The penitent woman is not to be compelled, but is to be exhorted, according to the judgment of a prudent confessor, to expend the price of prostitution upon pious uses."

But for other illicit actions several authors, e.g., Comitolus,¹⁶ Beusch,¹⁷ Collet,¹⁸ Gousset,¹⁹ Carrière,²⁰ and Tanquerey,²¹ deny the validity of a base contract even after the evil work has been committed. For, they say, that contract was invalid before fulfillment of the work. Therefore, even with the work completed, it remains invalid, because of Rule of Law 18: "That which from the beginning does not subsist in law is not made firm by the passage of time."

But the more common and far more probable opinion, which St. Thomas²² and St. Bonaventure, St. Antoninus, St. Alphonsus,²³ and very many ancient and modern authors certainly hold, teaches: "A contract under the condition of a base work, whether repugnant to justice or to another virtue, whether to be punished by the laws or not, once the condition has been fulfilled, obliges by natural law." The reason seems to be that in those illicit acts there is a twofold constituent: the one material, namely the physical act; the other formal, namely the culpability of that act. The second constituent is not estimable by a price and consequently can never be matter for a contract. The first constituent, however, is estimable by a price, and when it has in fact been performed, the other contracting party is bound to pay the promised price.²⁴ Hence one who promises marriage to a girl under the condition of carnal intercourse is bound, once this base condition has been fulfilled, to marry her. One who promises a sum of money to a malefactor for betraying his country,²⁵ is bound, once the betrayal has been committed, to pay the promised money. One who, from hatred of religion, promised wages so that servile works might be performed for him on Sunday must give these wages once the servile works have been performed.

Sometimes, however, base contracts of this kind are by positive laws declared absolutely invalid, both before and after the deed, e.g., a simoniacal agreement. Then they certainly do not oblige.²⁶

Because the opinion affirming the complete nullity of those contracts is extrinsically probable, and because modern civil laws²⁷ admit a civil action neither for obtaining nor for restoring a base price, in practice the possessor is to be favored,²⁸ and consequently, if someone refuses to pay the promised price for a base thing furnished, sacramental absolution cannot be denied to him.²⁹

Cases Resolved. 1. A merchant promised the editor of a very celebrated newspaper 1,000 francs if by artful lies he would recommend some business in his newspaper; but afterwards he refuses to pay this promised sum. The condition of the possessor is better in a base contract, and consequently the merchant cannot be strictly obliged, but only admonished, to give the promised money.

2. A young man promised a girl 100 francs if she would permit intercourse. Once this has been done, he refuses to give the 100 francs. He cannot be compelled in the forum of conscience to pay the promised money. The reason is the same: the condition of the possessor is better in a base contract. But if the girl afterwards secretly carried away the promised 100 francs, neither can she be compelled to restitution for the same reason: the condition of the possessor is better in a base contract.³⁰

¹⁴ Ferdinand Maurer, S.J., treats this controversy learnedly and profoundly in Zeitschrift für katholische Theologie, vols. 33 and 34 (1909 and 1910).

¹⁵ S. theol. 2, 2, q. 32, a. 7; q. 62, a. 5 ad 2. Even Concina himself (De restit. diss. 2 in comm., c. 11) concedes this, but falsely thinks that the sole title by which prostitutes can demand and retain the price is civil law, which punishes fornicators as by a fine, so that they pay the price of fornication.

¹⁶ Respons. mor. l. 3, q. 5. Concina, l.c., explains well the reasons alleged by him.

¹⁷ Tract. canonico-legalis de pact. et contract. c. 4, sect. 3, n. 271ff. (Migne, Curs. theol. vol. XVI, col. 427ff.).

¹⁸ De restit. c. 3, a. 1, sect. 4.

¹⁹ Theol. mor. n. 753.

²⁰ De contract. nn. 331-338.

²¹ De iust. n. 648.

²² S. theol. 2, 2, q. 87, a. 2 ad 2; Sent. 4, dist. 15, q. 2, a. 4, q. 2.

²³ Theol. mor. l. 3, n. 712.

²⁴ The response of the Holy Office of 14 January 1846 (Collect. de Prop. Fide n. 1003) is also to be noted: "A certain Bonze, ready to renounce the errors of pagan superstition and give his name to the Holy Catholic Church, asks that he be permitted to retain what he had formerly received in the pagan office which he exercised and what he had acquired in the practice of medicine. - Response: He is not to be disturbed, provided no certain injustice intervened from another source.... Likewise, what the Bonze acquired for himself from pagans in his priestly office, although it flowed from a superstitious source, nevertheless seems to have come to him legitimately, as being proper to the pagan nation and, with its consent, attributed to its priests in place of an honorarium."

²⁵ Commonly called espionage (Spionage).

²⁶ Cf. below, n. 565; German Civil Code §§ 138 and 817.

²⁷ German Civil Code § 138; Swiss Code of Obligations, arts. 20 and 66.

²⁸ Roman law also establishes thus: "If the cause both of the giver and of the receiver is base, the possessor is to be preferred, and therefore recovery ceases, even though payment was made by stipulation." L. 8, D. 12, 5; German Civil Code § 817; Swiss Code of Obligations, art. 66.

²⁹ Billuart treats this controversy excellently, De contract. diss. 1, a. 8.

³⁰ Cf. Génicot, Cas. consc. I, de contract. in gen. c. 3.

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.

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.

464. Conditions required for contract on the part of matter. - The matter of contract generally is the object of a right, i.e., everything, whether a thing, or an action, or an omission (a. 1126), into which a right in a thing or a right to a thing can be acquired, or everything which can be given, done, or omitted by man; in species the matter must be:

1. Possible, for no one can oblige himself to the impossible, for example, to migrating to the moon or to avoiding all fortuitous things; whence:

a) If the matter is impossible relatively to the contracting parties, the contract is null;

b) if it is partly possible, partly impossible, and the matter is indivisible in itself or in the intention of the contracting parties, the contract is null; conversely, if it is divisible in itself and in the intention of the contracting parties, it is valid as to the possible part;

c) if the matter is morally impossible, the contract of itself has force, but no one is judged to will to oblige himself, unless he has said so explicitly;

d) if from an unforeseen circumstance it becomes impossible for the contracting party, the contract remains valid if he is able to furnish the same thing through another without grave inconvenience;

e) if the contracting party by his own fault has rendered it impossible, he is bound to repair the damage inflicted upon the other contracting party; otherwise, if he was altogether inculpable.

2. Existing in reality or in hope, i.e., at least certainly or probably going to exist in the future, for example, fruits not yet mature in a field, gain hoped for from such commerce. For the hope of a future good, or the thing hoped for, is estimable by price (a. 1130).

Conversely, a contract cannot bear upon something which neither is nor will be, which is nothing; for dominion cannot be transferred nor a right acquired into a thing which does not exist and never will exist. Thus a contract concerning a burned thing is invalid (a. 1601).

But if the matter exists according to one part and according to another does not exist, it is in the judgment of the buyer either to rescind the contract or to stand by the contract while requiring a diminution for the destroyed part; this is to be understood if the destroyed part is notable (a. 1636-38).

3° In some way estimable by price, i.e., useful for human uses and furnishing value. Hence a) it must not be of no price: for a thing of no price cannot be the object of a benefit or a burden, and therefore a contract concerning it, whether gratuitous or onerous, is null; b) nor may it exceed every temporal price, or be a merely spiritual thing, in those contracts in which commutation is made with a thing estimable by a temporal price: for this is simony; but nothing prevents donating a spiritual thing or commuting it with another spiritual thing, unless however it is prohibited by the Church.

But a temporal thing can be annexed to a spiritual thing, whether antecedently, when the temporal thing is prior in the order of nature, for example, a church, chalice, sacred ornaments; or concomitantly, when one cannot exist without the other, either per se, as the labor to be undergone in the celebration of Mass or the administration of a sacrament, or per accidens, as greater labor because of a later hour or a longer journey; or consequently, when the spiritual thing is prior in the order of nature, for example, an ecclesiastical benefice. Now concerning the first thing a contract has force, provided the price is not increased because of the spiritual thing; concerning the third it does not have force, because the temporal thing necessarily depends upon the spiritual; concerning the second it does not have force if the temporal thing is annexed per se, it has force if only per accidens.

4° Placed in commerce (a. 1128), i.e., subject to alienation and acquisition.

Whence there are excluded a) things which cannot be occupied, as air, the ocean, etc.; b) things which pertain to public dominion, as public roads, public offices and duties.

5° Determined at least according to species, and at least determinable according to quantity; otherwise the contract would be uncertain and illusory (a. 1129).

Quantity is sometimes defined mathematically, for example, if ten pounds of coffee are sold; sometimes morally, for example, if wheat necessary for the sustenance of someone's family for a whole year must be furnished; indeed it can be uncertain here and now, provided it is determinable, for example, the whole heap of stones or wood which is present.

6° Proper to the contracting party: for no one can transfer to another a right which he himself in no way has, neither in reality nor in hope, neither in the present nor in the future; hence a sale or legacy concerning another's thing is null (a. 1599 and 1021). But future things which are held in hope can be the object of a contract (a. 1130); nevertheless positive laws generally invalidate a contract concerning an inheritance which is expected from a person still surviving, even one entered into with his consent, namely to impede the death of this person from being desired or procured¹ (a. 1130 and 1600).

¹ An exception, however, is made for a matrimonial contract: for a contract can be made concerning future succession in favor of the spouse or of children who are born (a. 1082). And by contract it can be determined whether future successions will constitute part of the community (a. 1526).

Hence a) generally each can promise only what must be furnished by himself, but not what must be furnished by a third party (a. 1119);

b) nevertheless he can constitute himself as a kind of pledge of another's deed, and promise not only that he will take care of it, but that he will bring it about that the third party actually consent; yet so that, if the third party does not consent, he renders the other contracting party unharmed (a. 1120);

c) he can stipulate unto the grace or favor of another (a. 1121).

7° Not yet owed to another from strict justice (a. 1021 and 1599): otherwise it is not his own. Thus a judge cannot enter a contract for receiving something for a just sentence which he is bound to render from office, since he obliges himself to nothing new.

Conversely a) a contract concerning a thing owed from another virtue, for example, charity or gratitude, although it can be illicit, is nevertheless valid, because thus someone obliges himself to something new, namely to doing it from a stricter obligation. Whence a physician who from charity must furnish care gratis to some poor man can validly agree with him concerning a fee to be received;

b) indeed nothing prevents a contract concerning a thing owed by you to another from justice from being made again with a third party to whom nothing is owed from justice. Thus one hired by Peter to carry a message to Rome can again for the same journey require a salary from Paul, whose business he will accomplish at the same time.

8° Honorable and licit, i.e., prohibited by no law, even apart from the contract, so that it is honorable in itself: for no one can oblige himself to something evil, nor demand that an illicit thing be done.

Yet the contract has force if the matter is dishonorable only because of the intention of the contracting party (for example, the purchase of a sword for killing), or because of the prohibition of the contract (for example, matrimony entered into against betrothals): for then the matter is not dishonorable in itself.

465. Concerning a base contract it is asked: whether after fulfillment of the base work it becomes valid, so that the other party now must furnish his own part? - It is answered: three things must be well distinguished:

1. an illicit contract, for example, a prodigal donation;

2. a contract under an illicit condition, for example, I will give you 1,000 fr. if you kill my enemy;

3. a contract from an illicit cause or concerning an illicit thing, for example, I give you 1,000 fr. that you may kill; or if it is entered into mutually: I promise you 1,000 fr. for killing, I promise you killing for 1,000 fr.

Now:

The first contract is valid, because it is not concerning an illicit thing.

The second contract is concerning a licit thing to be furnished, namely concerning payment of the price, but it is entered into under a suspensive condition; and therefore before the fulfillment of the condition, namely of the evil work, it is invalid; after the fulfillment of the evil work, it is valid. This in no way is special to such a contract, but common to every contract entered into under a suspensive condition. Sometimes, however, by civil law it is declared null (a. 1172), but in the sense that it is rescindable, and therefore it is not null before the sentence of a judge; but in gratuitous contracts such a condition is judged not to have been added (a. 900).

The third contract is invalid, even before the sentence of a judge, as one entered into concerning an illicit thing and from a base cause alone (a. 1131). Whence a) before the evil work has been perpetrated, neither is bound to fulfill the contract, but each is bound to withdraw from it. And if the price for the base work has already been paid, it will have to be restored, because a title for keeping it is lacking. For a base work cannot be the object of an obligation, and before the work is fulfilled there is no title in the one receiving the price except an obligation undertaken of positing the base work.

b) But if the contract is concerning an evil work to be furnished by each party, for example, I promise adultery for killing, - I promise homicide for adultery, no obligation will ever be able to be present, even if one has perpetrated his work, because there will never be any obligation to do evil.

c) But if the contract is concerning an evil work to be furnished for a temporal price, certain moderns judge that even after the evil work has been perpetrated there is no obligation of paying the price, under the pretext that by the course of time a contract is not made firm which, as invalid, does not exist from the beginning; and besides that the common good demands the perfect nullity of contracts concerning an illicit thing. - Yet with the great doctors² it seems that one must altogether affirm: after the evil work has been perpetrated, of itself there is an obligation of paying the price, which the other can exact and retain.

² St. Thomas II-II, q. 32, a. 7; q. 62, a. 5, ad 2; q. 87, a. 2, ad 2; IV Sent., d. 15, q. 2, a. 4, qc. 2; St. Bonaventure; St. Antoninus; St. Alphonsus, Th. M. III, n. 712.

The reason is 1. because in the third immoral and null contract by which someone promises a base thing, there is always implicitly included another unnamed contract, namely the second: concerning an honorable thing under a base condition: do ut facias, which obtains force after the work has followed, as was shown above. In reality, although that work is illicit and to be omitted, nevertheless from the estimation of the contracting parties it brings danger and burden, which are estimable by price, and the estimation of this sort of danger is not intrinsically evil and can be the matter of an unnamed contract: do ut facias. When then the other has undergone the danger, the price must be paid for the danger or burden, unless perhaps: a) the price is altogether prodigal, which would have to be reduced; or b) by some positive law the executor is deprived of the price of the crime; but such a disposition, as an infliction of penalty, has no force except after the sentence of a judge.

And therefore the will of one remains to remunerate the other if he furnishes the work; whence once the work has been furnished, by that very fact the contract, or consent of wills, is perfected. And therefore the obligation does not arise from a null contract; but on the occasion of this, from another valid contract.

2. From the inconveniences which are derived from the opposite opinion: otherwise, for example, a young man who deflowered a girl under promise of matrimony would not be obliged to take her in matrimony, nor would the price have to be paid for an illicit work of a Sunday; which no one admits. - They respond: the young man is bound from the damage, because the girl cannot enter another favorable marriage. - This indeed is a just title, but more seems to be required; otherwise the rich would offer money and thus the girl could marry in a favorable marriage. Hence even if such a title of damage to be compensated by money does not exist, nevertheless justice always obliges one to marry because of the promise, and so public estimation judges.

Therefore the object is licit: payment of an indifferent thing; - the cause is the deed, not as base but as estimable by price; - the consequences are not evil, for, the delict having already been done, it can no longer be said that the law favors it; but if hope of benefit should move one to perpetrate crime, hope of paying nothing would move one to persuade another to a delict and to deceive simple persons; and thus favor would be granted to him who is more guilty.³

³ Vermeersch, Quaestiones de Iustitia, n. 294.

466. Practical corollaries. - From this the following are deduced:

I say. The matter of a contract generally is all those things which can fall under the dominion of man and concerning which the contracting parties have free administration. Wherefore it must enjoy certain conditions, namely, it must be: 1st, possible both physically and morally, because no one can be obliged to the impossible; 2nd, existing either in reality or at least in a founded hope, otherwise it would be estimable at no price; 3rd, honorable, or prohibited by no law at least as to its substance, because a right of violating some law cannot be given or received; 4th, proper to the contracting party, because no one can transfer to another a right which he himself does not have; 5th, certain and determined, whether in the individual or in quantity and quality, otherwise the contract would be vain and illusory.

You Will Resolve. - 1st. Someone can receive a price from Titius for an action which from justice he already owes to Peter, if, without injury to Peter's right, that action can also be useful to Titius. The reason is that such an action, although it is already owed to another, is nevertheless proper to him who places it and truly estimable by price.

2nd. If the matter is possible only in part, the contract is valid, provided that the thing is not only divisible in itself, but also has been contracted concerning divisibly.

3rd. A merely spiritual thing can certainly be the matter of a gratuitous contract, because nothing from any law stands in the way, and it is confirmed by the practice of pious faithful; but not of an onerous contract, unless the thing is spiritual on both sides, as is clear from those things which have been said concerning simony. Indeed, even if the thing is spiritual on both sides, the case of a special prohibition made by the Church must always be excepted, as happens, for example, in exchanges of benefices carried out by private authority.

Question 1. What is to be said concerning the validity of a contract under a base condition, for example, I give you one hundred dollars if you kill Titius, if you defame Caius, if you give access to your body, etc.?

Resp. Before the fulfillment of a condition of this sort, the contract is certainly null according to the opinion of all; and the reason is that dominion cannot be transferred or received in that which is base. But if the base condition has already been fulfilled on one side, there is no little controversy. Many theologians indeed hold that that contract is then valid, because although a base action, insofar as it is illicit, is worthy of no price, nevertheless insofar as it is laborious, ignominious, or dangerous to the agent, or useful to another, it is estimable by price. But this reason would already prove that that contract is valid even before fulfillment of the condition, which no one admits. Wherefore there are not lacking other theologians and jurists who, even when the condition has been fulfilled, deny the validity of that contract, relying upon rule 18 of law in 6: "That which by law does not subsist from the beginning is not made firm by the passage of time." - Our Kent is in harmony with these, when he says: "The consideration must not only be valuable, but it must be a lawful consideration, and not repugnant to law or sound policy or good morals. Ex turpi contractu actio non oritur: and no person, even so far back as the feudal ages, was permitted by law to stipulate for iniquity. The reports in every period of the English jurisprudence, and our American reports equally abound with cases of contracts held illegal on account of the illegality of the consideration; and they contain striking illustrations of the general rule, that contracts are illegal when founded on a consideration, contra bonos mores or against the principles of sound policy or founded in fraud or in contravention of the positive provisions of some statute law. If the contract grows immediately out of, or is connected with an illegal or immoral act, a court of justice will not enforce it." - Cf. Kent, Comment. vol. 2, part 5, lect. 39, n. 466.

But if it is asked no longer about the validity of that contract, but whether he who promised one hundred dollars under the aforesaid conditions is held to spend them, still many theologians, according to the more common opinion, respond affirmatively; because, they say, in that base pact another unnamed contract is implicitly contained - I give that you may do, or I do that you may give - whose nature requires that always, as often as one contracting party has furnished his part, the other is held to fulfill his own, if he can do so licitly. - But indeed there are not lacking other theologians who, not improbably, deny the existence of this unnamed contract in each particular case, although they admit its force if its existence were established. Wherefore, practically speaking, the confessor, if someone has not yet paid the agreed price to a prostitute or hired killer and refuses to pay, cannot oblige him to pay under penalty of denying absolution.

From this same solution it is gathered that, strictly speaking, the confessor cannot oblige the violator of some girl to marry her from the fact that marriage was promised to her under the condition of committing fornication. Indeed St. Alphonsus, who adheres to the more common opinion concerning the validity of a contract after fulfillment of a base condition, nevertheless when it is a question of the obligation of marrying a violated girl, admits many exceptions, and exempts from such a burden if discords and quarrels are foreseen between the future spouses. - Cf. St. Alphonsus, nn. 642 and following. - Carrière, vol. I, nn. 331 and following.

Question 2. Whether an obligation of restoring arises from acceptance on account of a base cause?

Resp. Although the acceptance is not unjust toward him who gives, it can be base and illicit from other causes. Thus prostitutes are not held, after the sin has been committed, to restore money previously received, and they can receive it anew if it had not already been given. Namely, that action, in that part by which it is useful and delightful, is worthy to obtain a price. "For the justice and value of a contract it suffices," says Lugo, "that there be a counter-suffering, or that the seller deprive himself of some good for that price, which good he could retain without injustice to the buyer; therefore whether licitly or illicitly he deprives himself, nevertheless he always suffers, for the favor of the buyer, some damage worthy of a price, which he ought not suffer." - Disp. 18, n. 48. - And thus a wife can retain money received for adultery, although she can neither licitly nor justly sell her body. Nevertheless, in itself it is clear that money given before the use of the body and accepted from an explicit or implicit pact for the use of the body cannot be retained if the use was not granted; for there is no title for retaining it. But it must be said otherwise if it was given for capturing benevolence. - Cf. above.

Thus also theologians commonly teach that, with attention given to the law of nature, and unless the laws themselves render such persons incapable of giving or receiving, that which has been received for an evil work, once the evil work has now been done, ought not be restored.

Nevertheless I cannot retain the price which I receive from Peter for a thing already owed to Peter from justice. For this would be the same as if I were selling Peter his own thing.

With the law of nature considered, he who receives something on account of a good work, or an omission owed from some virtue other than justice, is not held from a debt of justice to restoring. Because there is no root of obligation: not from the thing received, because one able to transfer dominion transferred it; not from unjust acceptance, since no injury intervened. Nevertheless, it can be that from the debt of another virtue it would sometimes have to be rendered, and sometimes not. Let the matter be illustrated by an example. Titius vowed to hand over to the Church a chasuble of the value of 50 dollars. But Titius does not wish to fulfill the vow; wherefore Linus gives him 25 dollars that he may satisfy the vow. In this case religion obliges Titius to give a chasuble of so great a value; nevertheless, in fact, after accepting the 25 dollars, he does not give the chasuble completely, but partly gives and partly sells; and therefore, with the price retained, he has not yet satisfied the vow completely; and hence, just as he was held from religion before to give the chasuble completely so that he might satisfy the vow, so from the same religion he is held to restore the price, because he has not yet fully satisfied the vow. But on the contrary, if you ought to hear Mass, acceptance of a price does not cause you not truly to hear Mass, as you are held by precept. Therefore the general rule is thus posited by Lugo, disp. 18, n. 70: "when acceptance of a price causes that a work owed from some other virtue is not placed according to its substance or according to the due qualities, there will be an obligation by force of the same virtue of restoring the price, so that the work may be done such as it was owed from that virtue. But when acceptance of the price does not impede this, there will not be such an obligation of restoring the price."

MANY, and not undistinguished, Doctors constantly cry out that a prostitute cannot accept a fee, and that, once accepted, it cannot be retained. So Angelus, Baldus, and Jason super §. Sed et quod meretrici, l. 4. Whence they infer that one who commits fornication is not held to give the fee. So also Durandus 3. dist. 39. quaest. 4. Medina Cod. de restit. quaest. 20. Comitoli resp. moral. lib. 3. quaest. 5. Johannes Valerius in differ. utriusque fori, verbo Promissio, diff. 8. and Diana judges it probable p. 1. tract. 16. resol. 40.

The opposite opinion is that of Ven. Bonaventure in 4. dist. 15. p. 2. art. 2. quaest. 1. ad 4. St. Thomas 2. 2. quaest. 32. art. 7. and Cajetan there, Alexander of Hales 4. p. quaest. 86. membr. 3. art. 6. §. 2. Richard 4. dist. 15. art. 5. quaest. 8. Sotus l. 4. de Iust. quaest. 7. art. 1. Covarruvias relect. cited above; Valencia disp. 5. quaest. 6. punct 5. Homob. in Exam. Eccles. p. 2. tract. 9. quaest. 14. Regii in resol. casu 8. Sayrius lib. 10. tract. 5. cap. 3. num. 34 Aragon. 2. 2. quaest. 32. art. 7. Azor. p. 2. lib. 4. cap. 21. quaestu. 2. Salonii 1. 2. quaest. 62. art. 5. controu. 4. Sylu 1. 2. 2. quaest. 32. art. 1. Corduba lib. 1. quaest. 52. art. 2. Tanner. disp. 4. dub. 10. num. 300. Malderi 2. 2. tract. 1. cap. 9. d. 7. Turriani 2. 2. Tom. 2. disp. 14. dub. 1. Villalob. tom. 2. tract. 11. diffic. 16. Rebell. p. 2. lib. 18. quaest. 1. Lopez p. 1. cap. 105. Lessii lib. 2. cap. 14. dub. 8. Dianae loc. cit. These say that a fee can be accepted from a prostitute. This is common to nearly all Theologians and Jurists, as Tannerus says.

IT IS PROVED ex l. 4. §. Sed et quod meretrici, ff. de condictis ob turpem causam, where Ulpian has it expressly.

IT IS PROVED secondly by the reason of Cajetan, Valencia, and others, which they proclaim subtle. First, for every act estimable by a price, a price can be accepted; but the act of a prostitute is such: Therefore. The major is proved, because it suffices to act upon the proper object of a virtue, and to bestow an action upon it, even if, by reason of a circumstance elsewhere, that act is opposed to some virtue distinct from Justice, as Eligius Bassaeus infers, verb. Restitutio, 4. num. 3.

It is, moreover, the proper object of Justice whatever thing is estimable by a price. The major is confirmed by an example; for a thing that is sold, in a forbidden time or place, is transferred by law: The minor is proved; for the act of a prostitute offers to a man the material of a certain natural delight: Therefore it is estimable by a price, no otherwise than the act of offering foods, etc., even for procuring drunkenness. That is the reason of Ven. Bonaventure, I may say.

YOU OBJECT first. If these things can rightly be accepted: Therefore they can also be offered to God. And yet Deuteronomy 23. we read: Thou shalt not offer the hire of a prostitute in the house of the Lord.

VALENCIA ANSWERS from Ven. Bonav. loc. cit. that the price of prostitution is not rejected because it be of another's, but on account of indecency, just as an offering from the price of a Dog was also rejected.

YOU OBJECT secondly the Laws, which assert generically that a fee cannot be accepted for a base thing, nor does a pact, or a claim concerning it avail, l. Generaliter, l. si flagitii, ff. de verb. oblig. l. Mercatem, C. de Condictio ob turpem causam. Et l. Iulius genitum §. si ob maleficium, ff. de pactis.

VALENCIA ANSWERS from Ven. Bonav. loc. cit. that the Laws are understood of actions which are against Justice, and are possessed in bad faith, such as deceptive pacts, pernicious to life; as those who expose prices to tormentors for torturing others. Such are usurious pacts, and others of this kind, in which dominion is not transferred upon the rendering, namely, of some thing estimable by a price, such as the offering of the body to luxury. Although that action is not estimable formally, as it is evil; yet it is estimated, as naturally delectable; and from this gather that in the Seraphic Doctor are held all the things that pertain to the decision of this matter, while he says that a translation of dominion of money takes place in prostitution. But the most pure Virgin blushed to say what a prostitute gives, but only says that that action is sufficient to transfer dominion, in which manner Casas also speaks disp. 8. sect. 1.

If, however, any arguments seem to prove that this fee is illicit; they prove it only as to baseness formally; or as to those not having dominion, such as wards.

But what I said about exposed prostitutes must be said also of private concubines, as to the internal forum, as Valencia notes, and Covarruvias loc. cit. Medina ad 5. Sotus lib. 4. quaest. 7. art. 1. and others. The reason is that brought forward above.

IN the external forum, indeed, a fee cannot be accepted for those hidden acts which, if they were known, are punished; and consequently not in the internal forum either, after the judge's sentence has been laid down. For no one can enjoy the benefit of the law on account of an act which by law is to be punished. So Covarruvias above, Valencia loc. cit. and it is commonly gathered. ex l. Mercalem, C. de condictio ob turpitud. et l. Lucius Titius; ff. de Iure fisci. See Bassaeus loc. cit. Syluius 2. 2. quaest. 62. art. 2. Fill. tract. 31. cap. 9. quaest. 9. et 10.

MOREOVER, concerning the hidden acts of other prostitutes, estimable by a price, which by law are not usually punished; Valencia says that each part is probable. But the price given by a Religious to a prostitute must be restored to the monastery, as Casas teaches, loc. cit. Vasquez cap. 7. dub. 3. and commonly, in Fagundez lib. 7. cap. 5. num. 33.

But before the act, nothing can be accepted, because he is held to abstain from the wicked work; therefore the contract must be rescinded, as Bassaeus says with others.

It is CERTAIN that a promise for a base cause, such as homicide and concubinage, is invalid even before performance. They agree with D. Bonavent. in 4. dist. 28. dub. 1. litt et quaest. 3. D. Thom. 2. 2. q. 32. art. 7. et quaest. 62. art. 5. ad 2. Caiet. ibi, Covarr. ad Regulam Peccatum 2. part. §. 2. Corduba lib. 1. quaest. 32. art. 2. Medina Cod. de restit. quaest. 20. Lessius tract. 1. de iustitia, lib. 2. cap. 18. dub. 3. and the rest cited by Tannerus disp. 6. quaest. 2. num. 48.

The REASON is that of D. Bonaventure, on which all rely, because no one can, or ought, to bind himself to perpetrating a sin, whether by oath, or by a simple promise.

The QUESTION, however, is whether after the deed is perpetrated the promiser is bound to pay the promised price.

The FIRST opinion is that he is bound. So the cited authors, except St. Bonaventure; Less. Tom. 1. lib. 2. cap. 18. dub. 3. also agrees, Sancius cap. 14. dub. 8. a num. 52. Guttier. lib. 2. canon. cap. 10. Bartolus, and the Legists generally in leg. 2. Cod. de condict. ob turpem causam, Navar. in summa Lat. cap 17. num. 14. where he asserts that Legists, Canonists, and Theologians conspire in this. And Sotus lib. 4. de iust. quaest. 7. art. 1. Fagundez lib. 3. cap. 6. de contract. and others cited by Diana tom. 3. tract. 4. miscell. resol. 26. prove it.

The SECOND opinion denies that he is bound to pay; indeed, that he is bound to restore the price, even after the perpetration of the accepted deed. So many cited by Covarr. in regulam Peccatum, 2. part, §. 2. num. 9. and among the Theologians, Medina Cod. de restitut. quaest. 28. Dur. in 3. dist. 39. quaest. 4. which Lessius, cited above, and Fagundez num. 5. with many others, also call probable, Diana Tomo 1. Tract. 4. miscell. resol. 26. Bassaeus inclines to it, V. Promissio, num. 7.

AS TO D. Bonaventure in 4. dist. 28. dub. 1. litt. and in speculo animae, cap. 2. he gives the general rule from D. Isidore de contemptu mundi, cap. de voto. In malis promissis rescinde fidem. Wherefore he seems to stand for this opinion there.

It is PROVED first ex leg. si plagy. ff. de verb. obligationibus, et in leg. generaliter, ff. eodem.

Fagundez answers num. 6. that those laws only wish such conventions to be invalid before the deed is perpetrated; nor is a right of claiming back the promised price afterwards given in the external forum. That this is indeed asserted in the laws, St. Bonaventure teaches in 4. dist. 15. part. 2. art. 2. quaest. 1. ad 4. but the law of plagiarism says: Si plagy faciendi factine causa concepta sit stipulatio, ab initio non valet; the other law, however, says: Generaliter novimus turpes stipulationes esse nullius momenti. Therefore the laws decree something more, as the Saintly Doctor teaches in the first place cited.

He answers secondly that it must be understood of a promise made with a view to baseness; not of one made with a view to labor, danger, and inconvenience.

BUT I show that the laws thought nothing of this distinction, nor spoke of the bare right and dominion transferred, so that no restitution would be given; for lex Generaliter says thus: Generaliter novimus, turpes stipulationes nullius esse momenti, velut si quis homicidium, vel sacrilegium, se facturum promittat, (but he subjoins) sed et officio Praetoris continetur huiusmodi obligationibus actionem denegari. Behold, it decrees both distinctly: first, nullity; second, consequently, that no action is given. But the reason of Fagundez, distinguishing more subtly than is fitting, that he deserves pay for the labor, though not for the malice, vanishes; for the laws take account of crimes, not with a view to barring them, but as a work useful to someone, such as killing an enemy at his own risk, etc.

Yet Diana notes part. 4. tract. 4. miscell. resol. 27. that one is not bound to pay an immoderate sum, such as 100 gold pieces to a harlot, even if he had promised it by oath, because an oath added obliges only to a sum in which there is no prodigality, as Sotus lib. 4. quaest. 7. art. 1. ad 2. Martin Ledesma 2. part. quarti, quaest. 18. art. 5. Mercatus de contract. lib. 6. cap. 16. Palacius de contract. lib. 5. cap. 11. Aragon. 2. 2. quaest. 89. art 7. Salon. 2. 2. quaest. 62. art. 5. controu. 4. there Bannes disp. 5. concl. 3. and others teach, though Molina and others think the opposite probatively.

Fagundez also notes num 8. with the others of the first opinion, that every promise in whose fulfillment there is some sin, even a merely venial one, is void, even if confirmed by an oath. The reason of D. Bonaventure dub. cit. litt. is, because no one can be bound to sin, even by an oath, which is not a bond of iniquity. So also Sanchez lib. 1. de matrim. disput. 52. Azor p. p. lib. 11. cap. 7. Molina tract. 1. disp. 149.

Promises are VOID also which take away the liberty of making a testament, or of disposing freely of one's own things leg. Pacta, Cod. de pactis, where it is had: Pacta, quae contra leges, constitutionesque, vel contra bonos mores fiunt, nullam vim habere indubitati iuris est.