The nature of contract

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Question Second. On Unilateral Contracts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

¹ Anson, Law of Contract, p. 51.

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

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

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

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

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

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

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

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

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

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

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

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

¹ Digest of English Civil Law, n. 198.

² ibid., n. 196.

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

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

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

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

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

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.

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

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

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

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

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

Marriage may be defined as a contract between a man and a woman by which they give each other the right to exercise the acts requisite for the procreation of children, and bind themselves to live indissolubly together. Living in accordance with this contract constitutes the state of marriage.

The primary end of marriage is the procreation of children for the preservation and increase of the race; besides this there are also the secondary ends of mutual society and help, and a lawful outlet for concupiscence. The Fathers and councils mention a threefold good in marriage: that of children, that of mutual fidelity, and that of the sacrament, or an indissoluble and holy union, typified by the union between Christ and his Spouse the Church.

It is the teaching of the Church, defined by the Council of Trent, that marriage between baptized Christians is a sacrament, and so Christ our Lord, though he did not institute marriage, yet raised it to the dignity of a sacrament of the New Law, causing the marriage contract to be productive of grace ex opere operato whenever it is worthily entered into by baptized Christians. Between these the contract is the sacrament, there is no real distinction between them, and among Christians a marriage cannot be valid without being also a sacrament (Can. 1012, 1013).

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

II. Division. Contracts are chiefly distinguished:

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

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

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

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

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

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

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

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

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

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

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

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

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

I. The remote object must be:

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

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

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

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

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

II. The proximate object must be:

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

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

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

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

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

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

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

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

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

¹ April 22, 1822.

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

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

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

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

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

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

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

IV. Intimated to the other party, as follows:

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

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

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

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

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

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

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

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

I. Division. Error is distinguished:

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

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

Outside the cases enumerated above, error is accidental.

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

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

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

2. Accidental error effects these things:

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

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

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

The latter involves three things, namely:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Note: Delivery is "the transfer of a thing, right, or possession from person to person." Through delivery ownership of a thing can be acquired; this nevertheless is not to be understood as if delivery alone without any other prior disposition of the owner transferred ownership, but "if sale or another just cause has preceded." L. Numquam 31. ff. de Acquirendo rerum dominio. - Now delivery for the transfer of ownership is indeed not necessary by natural law; but if it is necessary, this is because it is required by positive human law, namely so that contracts may thus be completed and uncertainty of ownership avoided.

But physical delivery of the thing is not necessarily required; moral delivery suffices, and it can be done in diverse ways, just like possession. Cf. C. I. 1463-1466; C. G. 1604-1607. In Roman Law delivery is ordinarily necessary for acquiring ownership of things. Ordinarily; for 1. delivery is not required precisely for a right to a thing, as is clear in mortgage and other naked contracts; indeed, of things which belong to no one, even a right in the thing, or ownership, is acquired without delivery, or by mere apprehension and occupation. 2. There are certain cases excepted by law, in which ownership is transferred before delivery. Such cases from the same Roman Law are chiefly six: 1. In ecclesiastical benefices, C. Si tibi absenti de Praeb. in the Sixth. 2.

In inheritance, L. 23 Dig. de Acquir. vel amitt. possessione. 3. In legacy as to a thing determined individually, L. 64 Dig. de Furtis; L. 86 Dig. de Legatis et fideicommissis. 4. In those things which are sold, donated, or left to Churches, Monasteries, Hospitals, or for the Redemption of captives, L. ult. C. de Sacrosanctis Ecclesiis. 5. In a donation made from a pact that the donee give food to the donor; for, if these are denied, ownership returns by the fact itself to the donor. L. 1. C. de Trad. quae sub modo. 6. In those things which by delict are by the fact itself adjudged to the treasury. - Inst. 1. 2. t. 1. §§ 40, 44.

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

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

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

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

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

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

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

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

You will resolve: He who fictitiously consents to a contract does not contract, and therefore no ownership is transferred. But the deceiver is bound in conscience to make the deceived party indemnified, if the other suffers damage from this, or has already furnished his own part, where the contract is onerous; and therefore, if no other means is present, he must provide internal consent and stand by the contract. L. 709, 711; C. A. 877; C. B. 122. But he will be able to supply consent as long as the other has not retracted his own, although this one is ignorant of the defect of consent of the other party. H. A. 93.

Interpretative consent does not suffice for contracting, because it is consent which is not yet present, and therefore cannot give birth to the obligation of contract. In gratuitous contracts, by natural law it is not required that acceptance become known to the one promising. For, when a thing is offered to another, by this other's acceptance it immediately becomes his as though a thing belonging to no one. - When there is question of onerous contracts, the contract is regularly not perfected until the acceptance of each party also becomes known to each party; and therefore someone can withdraw before this.

The reason is that, just as my will of obliging myself to you, not yet manifested to you, does not oblige me to you, so your will of obliging yourself to me, not yet manifested to me, does not oblige you to me, and consequently neither you nor me. Nor indeed is it presumed that I wish to be obligated to you before it becomes known to me that you wish to be obligated to me. Regularly, namely unless someone truly wills himself to be obligated, and the contract to be perfected before the acceptance of the other party has been manifested; for example, if someone asks from you by letter for money on loan, with such interest to be paid, and you immediately send it to him, the contract of loan will be perfected, and he will be able immediately to dispose of the accepted money.

For the very offer of paying interest is a certain hypothetical acceptance of the consent of the other contracting party; by which consent that acceptance becomes absolute. Lugo d. 22. nn. 26, 27, 33, 34; d. 23. n. 70 ff. From C. B. 145, 151, 153, the offerer of a contract is obligated by his very offer. But the contract is perfected by acceptance of the offer, without this acceptance first having to be declared to the offerer, and although meanwhile the offerer has died. - C. H. 1262: acceptance by letter does not oblige the offerer except after it has come to his knowledge. C. L. 653: the proposer is obligated to keep the promise.

Does a contract entered upon with the intention of contracting, but without the intention of obliging oneself, or of fulfilling it, hold? - R. To the first: "The first opinion affirms with Lessius, Soto, Dic., Pont., etc. among the Salmanticenses... But the second and more probable opinion denies... The reason is that a condition added contrary to the substance of the contract invalidates the contract." L. 710. For what is it to contract, unless to oblige oneself to another? R. To the second: Affirmatively. The reason is that the will of obliging oneself and the will of not fulfilling the contract can stand together. L. 1. 6. nn. 832, 833.

Is every contract intrinsically perfected by mutual consent alone, externally manifested and accepted, without delivery of the thing? - Some contracts are those which, speaking per se, are perfected by mutual consent alone, manifested outwardly either by words, or writings, or another sign, and therefore are called consensual. The reason is that they import nothing else than the mutual agreement of the parties, such as lease, sale, mandate. But some contracts are those which, speaking per se, are perfected only by delivery of the thing, and are therefore called real.

The reason is that, besides that mutual agreement of the parties, they import the very delivery of the thing, such as loan for consumption, loan for use, deposit. C. I. 1837; C. G. 1919. To this second class of contracts, which are perfected by the thing itself, belong all unnamed contracts, which are not completed unless delivery of the thing follows on the part of one. And indeed without delivery there is not a loan for consumption, but rather a promise of a loan for consumption, etc. Speaking per se; for "in the forum of conscience one must stand by the intention of those contracting." L. 708; Lugo d. 22. s. 3.

From C. G. 1138, "The obligation of delivering the thing is perfected by the consent alone of the contracting parties. It makes the creditor proprietor, and constitutes the thing at his risk from the very instant when the thing ought to have been delivered." Thus also from C. I. 1125. - From C. H. 1095, 1258, contracts are perfected by mere consent, and immediately oblige to execution. As soon as the obligation of delivering the thing arises, the creditor has a right to the fruits of the thing. But a right in the thing is not acquired except by delivery of the thing. - Inst. 1. 3. tt. 14, 15, 16, 22, 23.

Do error and fraud invalidate a contract? A twofold fraud is distinguished: good fraud and bad fraud. Good fraud is nothing other than a certain skillfulness in acting, and in this sense Ulpian said that it is lawful for contracting parties in the price of purchase and sale naturally to circumvent one another, namely within the limits of the just price. Bad fraud, of which there is question at present, is: shrewdness, fallacy, contrivance, employed for circumventing, misleading, deceiving another. Shrewdness is found in keeping silent, fallacy in lying, contrivance in doing. C. H. 1269; C. L. 663. "A contract is null if fraud or error concerns the substance of the contract, because actual consent is lacking."

L. 714; C. I. 1108, 1110; C. H. 1266; C. L. 659, 660; C. A. 871; C. G. 1110; C. B. 119. If error or fraud concerns the quality of the thing, and has not given cause to the contract, the contract is valid; for consent is not lacking concerning the object itself of the agreement. C. I. 1110; C. H. 1270. If error or fraud concerns the quality of the thing, but has given cause to the contract, it is disputed. The first opinion affirms. "The reason is that although quality in physical being is something accidental, nevertheless in moral being it has the character of substance. Yet the opposite is commonly handed down by doctors and is more probable...

The reason is that this contract is not invalid either by positive law (whether Roman, or Italian 1110, 1115, 1300, or French 1116, 1117, or Spanish 1266, and Austrian 872), or by natural law... for to validate a contract a voluntary intention as to the substance suffices, although it is involuntary as to the accidents; unless... the contracting party expressly consents under the condition, if such a circumstance is present, because then the quality passes into the substance. But doctors commonly teach that such a contract can always be invalidated by the deceived person, by reason of the injury and defect of consent, and that the deceiver is bound to damages arising from the deception." And although the error was invincible, nevertheless someone can still invalidate the contract in conscience and not fulfill it, if the matter is of great moment, to which he is deservedly not considered to have wished to consent, at least altogether absolutely.

L. 714, 715; l. 6. n. 835; C. A. 874; C. I. 1108, 1115; C. B. 123, 853; C. H. 1270, 1101, 1102, 1107, 1726. - But "if fraud is employed by some third party, without any fault of the other contracting party, the contract is certainly valid; but some with Lessius, Sanchez, Bonacina wish it still to be rescindable; others say that it cannot be rescinded, but that an action is given to the deceived person against the deceiver for obtaining reparation of damages." Gur. 777; C. A. 875; C. B. 123. Error or fraud concerning the motive cause of the contract invalidates the contract, for then consent is lacking concerning the very substance of the contract. C. I. 1109; C. H. 1266.

Hence "it is not surprising if a fiction of poverty impedes the transfer of ownership, since the motive for giving alms to this poor person is his poverty, which that man wickedly and deceitfully feigns in order to extort alms." Lugo, Resp. Mor. d. 17. n. 1. But restitution in that case can probably be made either to the owner himself, or to other poor persons from the presumed will of the owner. L. 622. Error or fraud concerning the merely impulsive cause of the contract, for example if you lavish alms on a poor man because you consider him very upright, though he is less upright, does not invalidate the contract, since consent in the substance of the thing is not lacking; nevertheless someone can in conscience rescind the contract if the matter is of great moment, to which he is deservedly not considered to have wished to consent, at least altogether absolutely, as was said about a quality giving cause to the contract.

And this has place especially in gratuitous contracts, which require a full voluntary act and spontaneity. L. 737; C. I. 1109, 1110; C. H. 1266. Error or fraud concerning the person of the contract, speaking per se, does not invalidate the contract in onerous contracts; for the person is altogether extrinsic and indifferent in such contracts. Except, however, marriage, in which the contracting person is at the same time the object of the contract itself.

But it invalidates the contract in gratuitous contracts, speaking per se; for in these, on the contrary, the person of the donee is customarily specially intended by the donor. It is said speaking per se, for the circumstances of the matter must be considered, from which the will of the contracting party may be better known. C. I. 1110; C. G. 1110; C. H. 1266; C. A. 873. Lessius 1. 2. c. 17. D. 5; Rogron and Gousset in a. 1110; Molina tr. 2. d. 352. nn. 7, 8. From C. He., title on Dispositions mortis causa, art. 462, dispositions made under the influence of error, bad fraud, violence, threats are null. Nevertheless they become valid if the disposer has not revoked them within a year from the moment at which he knew the error or fraud, or at which the effects of violence and threats ceased.

Does grave fear invalidate a contract, or at least render it rescindable? - R. Negatively, if there is question of fear from within, or from a necessary or natural cause; or of fear indeed from without, but justly induced. The reason is that fear does not simply take away voluntariness, unless it is so grave that it disturbs reason. Nor indeed does such fear inflict any injury on the contracting party.

If there is question of grave fear from without, and unjustly induced, and not for extorting consent, it is disputed, but a distinction seems to have to be made. "For if it was induced by the other contracting party... the contract is voidable, because he who unjustly induces fear is bound to remove all disadvantages which arise from the injury, among which is the obligation arising from such a contract. Thus more probably Lugo.

But if fear is induced by an irrelevant third party, and the contract is used as a means for declining the imminent evil, then an onerous contract holds irrevocably... for neither of the contracting parties inflicted injury; but the third party inflicting fear cannot take away the obligation by consenting to rescission of the contract, because the contract was not made with him; although he is bound to induce rescission, so that he may avert injury from the innocent person, if this one wishes... And who would say that a contract can be rescinded if, from fear of your enemy plotting against you, you bought a sword to defend yourself?... Lugo excepts 1. the contract of marriage, which he thinks to be invalid if entered upon from such fear. He excepts 2. probably with Palau, gratuitous contracts, because thus better provision is made for the innocent person, and the other cannot complain, because he is deprived only of gain, remaining in the state in which he was before; and just as he would not wish to be obligated in such a state, so neither ought he wish to oblige the other." Reuter 127. S. Th. Quodl. 5. a. 17. Cf. V. 2. n. 1022. If there is question of grave fear from without, unjustly induced for extorting consent by someone other than the fellow contracting party, it is again disputed. The first probable opinion teaches that the contract "cannot be rescinded by natural law, because since neither party has inflicted injury, there is no reason from the nature of the thing why it could be rescinded at the will of one rather than preserved at the will of the other." Reuter 126. C. A. 875 favors this opinion. The second probable opinion holds the opposite, "because by reason of the injury, even if inflicted by a third party, the thing remains obligated to the prior owner, and consequently passes to anyone with that burden; but it is not fitting that someone through another's injury should lose every right in his own thing. Billuart, etc." Gur. 782.

Both Roman Law, Reuter l. c., and Italian Law 1111, French Law 1111, and Spanish Law 1268 are consonant with this latter opinion. Cod. Lusit. 666: the contract is null. If fear from without is unjustly induced for extorting consent by the other of the contracting parties, whether the contract thus entered upon is invalid by the fact itself is disputed. There is a threefold probable opinion. The first affirms. The reason is that if a contract of this kind were naturally valid, justice would arise from injustice, since from a contract extorted by injury there would arise an obligation, which is an act of justice. The second holds that gratuitous contracts are invalid, but not onerous ones. The reason is that for gratuitous contracts, unlike other contracts, an altogether free will is required; for it is a beneficence. But the third, more probable and very common opinion teaches that such a contract is indeed rescindable, but not invalid, neither by natural nor by positive law. Not by natural law, because fear does not simply take away voluntariness. Not by positive law, whether Roman, by which judges are commanded to rescind such contracts, therefore per se the law has them as valid; or French, as is openly had in art. 1117; or Italian 1111, 1113; or Spanish 1267, 1268; or Austrian 870, 874, 875; or German 123; L. 715, 716. - Cod. Lusit. 666: the contract is null.

Note: From Canon Law, contracts elicited from grave fear are invalid where there is question: 1. of marriage, and probably also of betrothals; 2. of handing over things of the Church and of renunciation of a benefice; 3. of religious profession, and of any other vows whatsoever; 4. of election of a Prelate; 5. of absolution from censures, and probably also of ecclesiastical jurisdiction. L. 715, 716.

You will resolve: "If, after someone has been caught in theft or homicide, you threaten that you will denounce him to the judge unless he gives or promises you a certain gift, the promise holds, nor are you bound to return what was received... This is true even if you did not have the intention of denouncing him, but only of frightening him; because you would at least yield your right of doing this, which is estimable by price... For he gave it so that you would resign your right of accusing; this you truly do, even if you had not intended to accuse." Reuter 120. And St. Alphonsus 894 says this more probably.

Whether a contract entered upon from slight fear is rescindable at the discretion of the one who suffered the fear? - "The first opinion affirms in the internal forum; for in the external forum an action is not given. The reason is that any fear whatsoever inflicts injury, from which the one inducing it ought not to receive advantage... Thus probably Lessius, etc. Yet they rightly except marriage according to our opinion, l. 6. n. 1056, and religious profession. Whether also a vow, see de Voto, 197. But the second opinion, which seems more probable to me, which Pont., Tamb., Viva, etc., hold, says that a contract entered upon from slight fear can be rescinded neither in the external nor in the internal forum. The reason is that he is not presumed to have consented from fear, but truly spontaneously, who knew it to be slight and, when he could easily have done so, did not reject it. Nevertheless the Salmanticenses judge that betrothals are altogether to be excepted, which, even when contracted through slight fear, can be rescinded by sentence of a judge, from the greatest liberty which betrothals require." L. 718. Gury-Ballerini 780 likewise judges that gratuitous contracts are to be excepted. C. I. 1114; C. G. 1112, 1114; C. H. 1267 favor this opinion.

Note: What has been said about grave and slight fear, understand also about reverential fear, insofar as this is grave or slight. L. 717; C. I. 1114; C. G. 1114; C. H. 1267.

Whether, if there has intervened grave unjust fear giving cause to the contract, and the thing has come to a third possessor in good faith, the one who suffered the fear can revoke the thing from him, and whether he is bound to restore? - Laymann denies it. But the Salmanticenses, Lugo, etc., more commonly and rightly affirm it; because the thing always passes with its own defect, even if the fear was not induced by that third party. "In this action it is not asked whether he who is sued, or another, caused the fear; for it suffices to say this: that fear was brought to bear." L. 14. § 3. Quod metus causa gestum erit. L. 719.

Note: Restitution in full is given to those harmed, by civil law, unless, namely, someone has approved the matter as duly and rightly done. C. I. 1309; C. G. 1311, 1338. It is given only in the cases expressed in law, C. G. 1118, even if there is question of minors, C. I. 1308; C. G. 1313, that is, in divisions, sales, and exchanges from C. I. 1038, 1529, 1554; in divisions and sales, but not in exchanges, from C. G. 887, 1674, 1706; in all contracts except aleatory contracts and compromises from C. A. 934, 1060, 1268, 1386; only in contracts celebrated by tutors or by representatives of absentees from C. H. 1291, 1293. Restitution in full, that is, replacement into the former state, and therefore each one is restored in his prior right. Therefore the harmed person recovers his thing, and the one harming, if he acted in good faith, ought to lose nothing of his own.

It must be sought from the judge; it has place even if injury was absent; and from C. I. 1300, the action of nullity or rescission is prescribed by five years; from C. G. 1304, by ten years; from C. H. 1299, by four years. Prescription of this sort holds also in the forum of conscience, because restitution belongs only by civil law. Action; for the exception of nullity or rescission is perpetual in favor of him who is compelled to execute the contract. C. I. 1302.

This benefit likewise belongs to churches and pious places within four years, from C. 1, 2 de Restit. in integr. in the Sixth. But restitution in full which belongs by natural law to those harmed, from injury inflicted because of fraud or fear, does not need the office of a judge, and it is verified in all contracts, and is perpetual. L. 717; Gousset 739; S. Th. 2. 2. q. 89 ad 3. From C. B. 853, payment of a credit obtained by an illicit act can always be denied.

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

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

Who have, by positive law, capacity for contracting? By positive law, in order that someone validly, or at least firmly, contract, it is required that he not be declared by law incapable of making a contract. From Roman Law a wife cannot contract or dispose concerning her dowry and its fruits; nor concerning goods common to the family, when the husband reasonably contradicts. But she can dispose at will concerning paraphernal goods, even against the husband's will. L. 489. A son under paternal power who is below puberty, even if he contracts with the father's consent and concerning military goods, is not obligated. But, if he is of puberty, he is obligated, provided that there is no question of alienating immovables and precious movables.

But he can by no means dispose concerning profectitious and adventitious goods. - A person below puberty deprived of a father contracts validly by authority of a tutor, and a minor with the consent of a curator, unless there is question of immovables and precious movables. But a ward can oblige another for his own advantage, for example by accepting a donation, even without the authority of a tutor. Inst. § 9 Pupillus de Inutil. stipul. - Those civilly dead can neither receive nor donate goods in any way; and their goods pass to the heirs. Those civilly dead are those condemned to death, to perpetual galleys, to deportation.

From C. I. 324 ff., 1105, 1106; C. G. 489 ff., 1123, 1124; C. H. 200, 1263, 1264; C. A. 21, 865, there are some to whom almost all contracts are prohibited, and others to whom only certain contracts are prohibited, or in certain cases. - Almost all contracts are generally prohibited to wives, minors, and interdicted persons. Among interdicted persons are to be counted the incapacitated, the deaf-mute, and those blind from birth. Someone is interdicted because of infirmity of mind. C. I. 324; C. G. 489. - He is declared incapable who indeed is of his own mind, but senseless, or inept, or prodigal. C. I. 324, 339; C. G. 513; Cf. C. A. 21, 269. - The deaf and mute, in civil law, are equated as to contracts with those under incapacity.

Those blind from birth are equated as to contracts with the deaf and mute. C. I. 340; C. A. 275. - Interdicted persons are equated to minors; therefore they are under tutelage. C. I. 329; C. G. 509. - A curator of incapacity is customarily given; with him they do all things legitimately, without him only those things which pertain to administration of goods. C. I. 339; C. G. 513. - Cf. C. H. 32, 170, 200, 221-220. From C. B. 104, one incapable of contracting is he who has not yet attained the seventh year, who labors under a mental disease excluding liberty, who is interdicted because of mental disease. From the same Code 105, the declaration of will of one incapable is null.

What about the contracts of wives, minors, and interdicted persons in more recent law? - A wife generally cannot contract firmly without the special consent of the husband, or, in his absence, without the authority of the judge. C. I. 135, 136; C. G. 217, 219; C. H. 61, 62, 65. Nevertheless she can buy necessaries for the family. In C. H. 62, a wife can contract without the special consent of the man when she makes ordinary expenses of the family. Likewise in C. He. 163, the wife represents the conjugal union for occurring necessities of domestic economy, and obliges also the husband, unless her acts have been excessive. From C. I. Comm. 14 § 2, a wife engaged in commerce is permitted even the alienation of her own immovable goods (not dotal goods). From C. B. 1365-1371, 1395-1400, 1405-1407, a wife can freely dispose of goods reserved to herself; but as to goods subject to the husband's administration and usufruct, she needs the husband's approval. Cf. C. A. 1237 ff. - Non-emancipated minors cannot contract firmly without the assistance of a tutor. C. I. 277; C. G. 450; C. H. 262, 1263; C. A. 152; C. B. 106 ff. But emancipated minors are capable of making acts of administration and contracts determined by law. But for the rest the assistance of a curator is required. C. I. 317-319; C. G. 480, 484, 487; C. H. 317. But in a matter of greater moment, the tutor and curator depend on the authority of the family council. C. I. 277, 301, 314 ff.; C. G. 450, 468, 483; C. H. 269. From C. I. Comm. 9 ff., emancipated minors, whether males or females, legitimately exercising commerce, are considered majors and can alienate their own goods, even immovable goods. Interdicted persons, namely those who by sentence of a judge are declared incapable of exercising civil acts because of a state of weakness, or dementia, or fury, as also prodigals juridically declared, cannot contract firmly without the assistance of a tutor or curator, or of a juridically constituted counselor. C. I. 329, 335, 339, 340; C. G. 502, 509, 513; C. H. 200; C. B. 114 ff. If the prescriptions of law are not observed, the contracts of these, namely of wives, minors, and interdicted persons:

1. Are valid, unless they are invalidated by the sentence of a judge. C. I. 1300, 1899; C. G. 1304, 2012; C. H. 1302; C. B. 106-113. - 2. Are rescindable at their discretion, but by no means at the discretion of the fellow contracting party. C. I. 341, 1107, 1300; C. G. 1125, 1304; C. H. 1302; C. B. 108, 111, 135, 144; except interdicted persons by way of penalty, against whom incapacity can be opposed by anyone having an interest. C. I. 1107. But where there is question of wives, the husband or their heirs also can oppose the nullity of the contract. C. I. 137; C. G. 225; C. H. 65.

3. Minors can invoke rescission because they are minors from C. I. 1300, 1303; C. H. 1300; because they are harmed from C. G. 1305, 1306. But wives and interdicted persons can invoke rescission even if they were not harmed. C. G. 1305, Rogron in this article; with the case excepted, however, for a minor, if, exercising commerce or an art, he contracted for matters of commerce or art, C. G. 1308; but for a wife, when she is occupied with public and separate commerce, C. G. 220, Rogron in this article; C. I. 135; or buys those things which are necessary for the support of the family, C. H. 62.

4. But they could not invoke this rescission in conscience whenever they acted by fraud and deceived the fellow party, and when the obligation arose from delict or quasi-delict. For no one ought to receive advantage from fraud; nor does the legislator intend to favor fraud and delicts, but the weakness of these persons. C. I. 1305, 1306; C. G. 1307, 1310; C. A. 865, 866; C. B. 109, 828.

5. Once rescission of the contract has been made, they must restore what they received, if they received advantage from the contract. C. I. 1307; C. G. 1312; C. H. 1303, 1304. If no utility came to them, they can use in conscience the benefit of the law, so that they not pay what they received, since such a law is just on account of the common good, for defending persons of this kind against the frauds of the wicked. C. I. 1307; C. G. 1312; C. H. 1163, 1304; Gousset 744-749; L. 918. Cf. here 667, 678, 1085. L. ult. C. de Temp. in integr. restit. grants four years for seeking restitution in full; C. I. 1300, five years. Cf. here 950.

To whom are only certain contracts prohibited by more recent law? - Only certain contracts, or contracts only in certain cases, are prohibited: 1. To tutors, who are forbidden to contract with those administered by them. C. I. 300, 1457; C. G. 450, 472; C. H. 275. 2. To spouses among themselves, C. I. 1054, 1433; C. G. 1525, or with respect to others, C. I. 1405; C. G. 1554. Cf. C. I. 1405, 1407, 1433 ff. Cf. also C. H. 1458, 1541; C. L. 1564. - 3. To certain private and public persons having care and protection of another's goods, namely as to these goods. C. I. 1457, 1458; C. G. 1596, 1597; C. A. 879. - But although contracts of this kind are prohibited by civil law, nevertheless not all are declared invalid by the fact itself before the sentence of a judge. From Trent, sess. 25. C. 16 de Reg., no renunciation or obligation is valid if made before the two months nearest to Profession. - Concerning absentees, cf. C. I. 21 ff., 26 ff.; L. 723, 724.

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

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

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

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

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

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

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

Can the object of an onerous contract be an action otherwise owed, and consequently can someone licitly receive a price for it? - R. Negatively, if it is owed from justice to the other contracting party. The reason is that otherwise you would sell another his own thing. Therefore neither a judge for issuing a just sentence, nor a robber in order not to kill you, etc., can receive a price either licitly or validly. R. Affirmatively, if it is owed from justice to a third person, with this person's right nevertheless uninjured. The reason is that you do not injure the right of the first, and you make a useful thing for the latter. Thus, for example, if someone hired you to go to a certain place for handling a business, you can also be hired by another to make that journey for another business, provided that the later mandate does not harm the prior. - "He who is not bound to something from justice, but from charity or another virtue, can well receive a price for it, since what he promises is estimable by price." L. 1. 4. n. 216; l. 3. n. 537, 713.

Hence you can indeed receive money so that you may keep the fast of the Church; but you are bound to restitution if you exact money for showing the way to a man passing by, which you can do immediately and without any labor of yours. For the price of a work is taken both from the labor and inconvenience necessary for it, and from the utility furnished to another from that work, according to common estimation, as well as from the obligation undertaken from justice of doing or not doing, and from the right which the other therefore acquires; but by no means from some singular necessity or utility of someone, which is only by accident.

Can a spiritual thing be the object of a contract, whether gratuitous or onerous? - R. Affirmatively, with all simony nevertheless excluded. The reason is that nothing disordered is present in such a contract, nor is it prohibited by positive law. Hence, whether from fidelity or from justice, you can promise Masses, etc.

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

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

If a base thing has been furnished by another, is someone bound to furnish what he had promised? The first probable opinion denies. The reason is that what from the beginning is null cannot have value, even after the placing of the work on the other side. For when the work is fulfilled, that prior will has no force because of the law invalidating such a contract. For not only natural law itself, but also positive law, both canon and civil, C. I. 1119; C. G. 1131; C. H. 1275; C. L. 669, 671; C. B. 138, invalidates such a contract from the beginning. Since therefore that will has no moral value at the beginning of the contract, it persists as such even after the placing of the work. But just as sin is not estimable by price, so also the labor or inconvenience intrinsic to that sin is not estimable by price.

The second probable opinion affirms. For there are two contracts. The first is the promise of a base thing to be furnished, which certainly is invalid. But the other is an unnamed contract. Now an unnamed contract, I give that you may give, etc., is perfected when delivery of the thing or furnishing of the work is made; and then, as is clear, the reason and force of the laws which invalidate base pacts cease; for the obligation which is then placed on the other side is not base, nor does it oblige to a base thing. But the inconvenience and danger which the other party underwent is truly estimable by price, although the sin itself cannot be estimated by price. S. Th. 2. 2. q. 32. a. 7; q. 62. a. 5 ad 2; 4. D. 15. q. 2. a. 4. q. 2, 3; D. 33. q. 1. a. 3. q. 2 ad 1; Lugo d. 18. n. 45 ff.; L. 642, 712; Struggl art. 6. VI; Reuter 109, 339; Tambur., Explicat. decal. 1. 7. c. 5. nn. 19, 21; Ithur. Cas. 5; Gousset 753.

You will resolve: "When someone gives to a prostitute because of fornication, the woman can retain for herself what was given to her. But if she had extorted something excessive by fraud or deceit, she would be bound to restore it to the same man." S. Th. 2. 2. q. 62. a. 5 ad 2; q. 87. a. 2 ad 2; S. Poenit. 22 Apr. 1822; L. 4 de Condict. ob turp. caus. ff. If, on the contrary, a judge, from a contract, were to issue an unjust sentence for Peter, so that Peter would kill that judge's enemy, Peter after the unjust sentence has been pronounced would not be bound and could not kill the judge's enemy. From C. B. 817, he who has received a prestation contrary to law or good morals is bound to restore it. Restitution does not have place if the author of the prestation is guilty of the same illicit matter, unless the prestation consisted in contracting an obligation. What has been furnished for fulfilling an obligation of this sort cannot be sought back. From C. A. 1174, what was given for the execution of an illicit thing cannot be sought back. But what was given to impede an illicit deed can be sought back. From C. H. 1275 also and C. I. 692, the price knowingly paid for a base thing cannot be sought back.

Is one promising something prodigally to a woman for intercourse bound after the intercourse to give it? "Lugo, Filiucius, Sanchez affirm, because, once the promise has been placed, the giving is then owed, not prodigal. But Soto, Bannez, Trullench, etc., more probably deny, even if there has been an oath, because the promise does not take away that the prodigal giving is illicit; therefore the illicit matter must be reduced to equality according to common estimation." L. 735.

"If a man gives to a woman to extort intercourse, can she retain it when intercourse has not been granted? - If there was a pact concerning intercourse, explicit or implicit, then certainly she is bound to restore; but otherwise, if the gift was given to entice the mind, because that giving was altogether liberal... Yet the Salmanticenses rightly note that a woman receiving such a gift is with difficulty excused from the sin of scandal, because once the gift is accepted the man is rendered more ardent and more audacious for lusting after her." L. 712, 734, 736.

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

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

You will resolve: Contracts cannot be revoked except by mutual consent, or by causes approved by natural equity, law, or custom. C. I. 1123; C. G. 1134, 1135; C. H. 1300. - The intention of the contracting parties is to be carefully investigated, if it can be clearly and expressly established. But if it remains obscure and ambiguous, it is to be interpreted in good faith, both from the matter of the agreement, and from the various clauses of the agreement, and from the usage of places, and from the character of the persons, etc. L. 219 de Verbor. signif.; C. I. 1131-1139; C. G. 1156-1164; C. H. 1281-1289; C. A. 914-916; C. B. 133-157, 242, 315 ff.

Note: In all contracts obligatory back and forth, the condition is tacitly present that, if one of the contracting parties has not fulfilled his obligation, it is lawful for the other to withdraw from the contract. But this tacit condition does not dissolve the contract except by the office of a judge, according to more recent laws; but if expressly added, it dissolves the contract by the law itself. C. I. 1123, 1165; C. G. 1134, 1184; C. B. 320 ff., 346 ff.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

You will resolve: An oath is invalid if the act itself is invalid by the fact itself, whether by natural law or by positive law. Trent, sess. 25. C. 16 de R. R.

When the obligation of the act has been removed, the obligation of the oath is also taken away. Those things which are tacitly present in the act, namely if I am able, if the matter is not notably changed, if the other keeps faith, etc., are also present in the oath. Hence, if you swear that you will observe the statutes of some community, if these are no longer observed by the greater part of the community, neither are you bound to observe them. L. 1. 3. n. 181.

Does an oath added concerning not rescinding a contract altogether firm a contract which is rescindable by positive law? It is disputed.

Some say that it is firmed both from religion and from justice; and therefore that it gives a right of justice to the promisee. For the validity or firmness of the act, removed by law, is restored through the oath. But an oath by its own nature does not furnish this, since through it we are obligated not to man, but to God alone. Nor does an oath make a new obligation from justice, but confirms one made from religion. But others say that it is firmed only from religion. Firmed from religion; that is, the promisee stipulates for himself a new security and a certain quasi-pledge, with an oath interposed, which consequently it is not lawful to extort from him, when he is reasonably unwilling, as from an unwilling creditor, by dispensation of the oath. And indeed, because of reverence toward God, an oath is to be kept whenever it can licitly be kept. Therefore it must be denied when rescindability is introduced immediately and directly on account of the common good. For then it would be harmful to the common good, and therefore illicit and invalid. The same must be said if renunciation of right is prohibited. For then it is illicit. Trent, sess. 25. C. 16 de R. R. But it must be affirmed if rescindability has been introduced immediately and directly on account of the private utility of the contracting parties, and renunciation is not prohibited. For then each one can renounce a benefit established in his favor. Hence the oath does not seem to stand by which someone freely promises another that he will not revoke a testament or legacy made in his favor, since that renunciation is prohibited under whatever form. C. I. 916. Cf. 1034. But do the oaths of minors, wives, and similar persons hold for firming contracts? Gury 792 denies it, "even if the law has been established for their utility, since wicked men would always exact an oath from them, which would yield to the detriment of society." But Struggl, tr. 5. q. 3. n. 27, affirms it. Secondly, on account of the general reason that that law was enacted immediately and directly on account of the good of private persons. Cf. 223 and C. Cum contingat 28 de Iurei. It will perhaps be better to distinguish. For if the contract regards a thing good and useful in itself, then the aforesaid persons seem to be bound to fulfill it, with the benefit of the law neglected. But if the contract regards obtaining helps by which they may indulge their desires and dissipate the family estate, the oath is contrary to good morals, and they can well use the benefit of the law. That is, the common good demands this protection of age and sex through rescindability. But to use it or not use it depends on the discretion of each one, and he certainly can reasonably renounce it. Besides, because an oath is accessory, and does not change the nature of the act, if the act is by its own nature revocable, as a testament; or revocable by positive law, as a donation when children have been received; or subject to rescission, as contracts of minors and wives, it is validly revoked and validly rescinded. - Lugo d. 22. nn. 200-202, Resp. Mor. 1. 6. d. 24; Lessius 1. 2. c. 17. d. 7; L. 177, 727, 739, 757, 891, 892; C. A. 937; Gousset in a. 1304; E. M.

744.^† - Definition. A contract is an agreement by which one or several bind themselves toward one or several others to something to be given, done, or omitted.

Division. A contract is chiefly distinguished as: 1. unilateral, or bilateral. The former occurs when one or several bind themselves toward one or several not bound, as in the contract of gratuitous promise. The latter is had when one or several bind themselves toward one or several likewise bound, as in exchanges. A bilateral contract is also called synallagmatic, from the Greek words syn, with, and allasso, I exchange.

2. Gratuitous, or of beneficence, or onerous. A contract is called gratuitous if one of the contracting parties gives something to another, exacting nothing from him from obligation. But it is called onerous if each of the contracting parties obliges himself to furnish something to the other, as in a contract of sale. This division falls back into the preceding one. For a gratuitous contract is unilateral, and an onerous contract is bilateral.

But an onerous contract is again subdivided into commutative and aleatory. It is commutative if one contracting party gives a thing in one species, and the other gives an equivalent thing or one of a diverse species. It is aleatory if one gives a thing, but the other contracting party gives not a thing, but the probable hope of obtaining some thing; since this hope can fail, it effects that a contract of this kind bears before itself the likeness of chance.

3. Solemn or simple, according as it requires special formalities of law, or is subject only to common dispositions.

4. Nominated or innominate, according as it has its own name, as for example sale, or lacks its own name, for example, I give so that you may give, I do so that you may do, etc.

5. Nude or clothed. A contract is called nude which in the external forum does not beget an obligation, but only an exception ¹: such are agreements which are made without writing or witnesses, as pacts in games, etc. A clothed contract is one which, besides the obligation of conscience, begets an action in the civil forum, as are contracts fortified by the formalities required by law, etc.

¹ If, for example, from a sale I owe you a hundred coins to be paid on the last day of the month, but you promised me that you would give a hundred as a loan; when you seek yours, I can oppose an exception, because that natural obligation of lending survives and has not yet been extinguished.

But nude pacts have other effects also as regards the external forum. For 1. if that which is owed from a pact of this kind has been paid, repetition is not granted; 2. for these natural obligations a surety is bound; 3. the creditor can retain a pledge.

Moreover two pacts are excepted which, although nude, beget an obligation and a civil action, namely: 1. those which, while the simple form of convention remains, have special efficacy of obligation from civil law; these pacts are called legitimate, for example, a pact of donation or of dowry; 2. those which have the same force from praetorian law, as an agreement concerning a pledge. See Vinnius (Ad Lib. 3, Tit. 14, § 2, n. 6).

Likewise in the canonical forum, if the cause pertains to it by reason either of persons or of matter, an action is given for a nude pact of promise, as often as this was entered into with expression of the cause. Indeed expression of the cause is not required if a donation was made to the Church; since a sufficient reason is always presumed, namely the reason of piety and religion. Compare Laymann (Lib. 3, Tr. 4, Cap. 3, n. 3).

6. Formal or express, or virtual or tacit. The former is that which is made by words, writings, or other signs explicitly manifesting consent; the latter, however, is that whose consent to the thing agreed upon indeed exists really, but is manifested only implicitly by some saying or deed. Thus a physician exercising his art is judged to promise that he will do that which his profession requires. This contract is commonly also called a quasi-contract.

7. Absolute or conditioned, according as no condition, or some condition, is placed upon it. It is also called pure or not pure ².

² Add here another partition, according to which some contracts are called of good faith, others of strict right. In the former a judge can arbitrate many things from the equitable and the good; in the latter one must stand by the words of the contracting parties (Lugo, Disp. 22, n. 10). Contracts of good faith are buying, selling, lease, hire, management of affairs, mandate, deposit, partnership, etc. On the contrary, contracts of strict right are considered to be most innominate contracts, and likewise loan for consumption, census, gratuitous stipulation or donation: to this pertains L. 99, ff. De verb. oblig. Whatever belongs to the binding of an obligation, unless it is plainly expressed in words, must be understood as omitted; and we interpret almost always according to the promisor.

755. • In every contract three things must be distinguished, namely essence, nature, and accidentals. 1. To the essence pertain those things without which a contract cannot exist. Thus, for example, in a contract of sale three essential things are given, namely the thing, the price, and consent. One being lacking, there is no contract. If in place of a price, for example, another thing is given, it will no longer be a contract of sale, but of exchange. 2. To the nature pertain those things which, although not expressed, nevertheless from law or custom or equity are understood as comprehended in the contract, although they are not essential; for example, the security furnished against eviction of the thing sold, which could be excluded by the contracting parties without the sale being invalid: when the condition is not expressed, the seller must furnish security for the thing sold. 3. But accidentals are called those things which can be joined to the contract by a special agreement, without being judged added by law or by the nature of the thing; for example, such a delay of price, or other things of this kind. - Bouvier, etc.

These things having been premised, it remains to treat: 1. of the requisites for contracting; 2. of the obligation of a contract; 3. of the modifications of contracts.

Three things are required: 1. suitable matter; 2. a capable subject; 3. legitimate consent.

By the name of modifications are designated certain clauses added beyond the nature and essence of contracts, so that now they strengthen the obligation of the same contracts, now also they increase or determine it, now they suspend or destroy it.

But the principal modifications of contracts are: 1. oath; 2. modes; 3. conditions. - These three must be treated briefly.

795. • A condition is a quality ¹ added to a contract, which for the most part suspends it until it is fulfilled. It is usually expressed by the particle: if, unless, provided that..., etc.

¹ Here you will define condition, rather than quality, as being a circumstance added to a disposition or contract, upon whose existence we will the validity of that disposition or contract to depend (Schmalzgr., book 4, title 8, n. 1).

A condition which can be attached to contracts is multiple, namely: 1. express or tacit; 2. concerning the present or the future; 3. possible or impossible; 4. necessary or merely contingent; 5. honorable or dishonorable; 6. potestative or casual, according as it is in the power of the contracting person or not ²; 7. positive or negative; 8. contrary to the substance of the contract, or not.

² To this partition others add a third member, namely a mixed condition, which depends partly on the choice of the contracting person and partly on an uncertain event.

796. You will resolve. - 1. All conditions must be fulfilled in that sense in which the contracting persons are prudently judged to have wished to oblige themselves.

2. A condition concerning a base or impossible thing renders the contract null both by natural and civil law. The reason is that no one can oblige himself to something base or prohibited. Nevertheless, in civil law, both common and Gallic, donations among the living and by testaments are excepted, in which base conditions are held as not added. - Cod. civ. 900. - The same must be said of a base or impossible condition added to marriage, provided it is not contrary to the substance of the contract. - Thus from Canon Law.

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

4. A condition must be fulfilled not only equivalently, but in its proper form. Some except the condition, if you marry, which they say is fulfilled through entrance into Religion; for otherwise the condition would be base. - See St. Lig., n. 930. Make exception if the condition were determined to some person, e.g. if you marry Paul; because a just and honorable reason can then be present.

5. Potestative conditions, or those which depend upon the will of one of the contracting persons, are judged fulfilled not only when that is furnished which was enjoined after the manner of a condition, concerning which there can be no controversy, but even if it is not in reality furnished, namely when he who obliged himself either 1. impeded the condition from being fulfilled ³; or 2. was impeded by the other from satisfying the condition ⁴. - See Cases, n. 787 and following.

³ This does not always happen in this way; for someone can attach to a contract a condition which to fulfill or not fulfill is in the free power of the one attaching it. Thus, e.g., someone can promise marriage unless he prefers to be initiated into sacred things. Indeed this condition is tacitly understood in the contract of betrothals, namely, unless I prefer to enter religion, or receive sacred orders, etc.

⁴ You have a twofold case in which, even if that is not furnished which had been provided by the pact, nevertheless the condition is judged fulfilled: 1. if a third party, whose interest it was that it not be fulfilled, impeded the fulfillment of the condition, when the contracting person wished to fulfill it; 2. if the fulfillment was impeded by the act of a third party, in whose person the condition was to be fulfilled. - See Voet, book 28, title 7, n. 19.

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

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

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

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

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

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

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

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

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

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

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

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

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

660. 1. On the direct obligation of contracts. (A) A valid contract begets an obligation in conscience, even if its validity cannot be proved in the external forum; for it is deservedly held as a law as regards the contracting parties themselves, who freely entered the pact and undertook a moral obligation upon themselves.

(B) The nature and extension of the obligation depends on the will itself of the contracting parties, insofar as it can be understood from all the circumstances. - For contracts, as ordered to the common good, are to be entered and fulfilled in good faith; therefore they oblige to all those things which those making the pact intended. But their intention is gathered not only from the words employed, but also from the character of the persons, the usage of places, or civil laws. - But if, after all things have been carefully weighed, some doubt remains, a friendly transaction is to be advised.

(C) Contracts do not have obligatory force except between the contracting parties themselves, and those who hold their place; for no one incurs an obligation from a pact unless he has furnished consent to it.

(D) A rescindable contract obliges at least one contracting party until he who has the right of rescinding seeks rescission; but if rescission has not been sought within the time defined beforehand by law, the contract becomes firm, and binds the two contracting parties.

661. 2. On the indirect obligation of contracts. (A) By natural law, when the contracting parties, from theological fault, have not fulfilled the obligation undertaken, they are bound to compensate the damage which followed from this, because they are truly the unjust and culpable cause of this damage; but if the damage happened fortuitously, without any fault, the debtor is not bound to repair it, unless he has undertaken fortuitous events upon himself.

If damage arises from merely juridical fault, it certainly must be repaired after the sentence of the judge, from what was said above, n. 476; indeed probably, according to some, even before the sentence, because the contracting parties are judged to obligate themselves according to the sense of the law; but, according to the laws, damage must be repaired as often as fault even merely juridical is present. Yet the more probable opinion teaches that they are not bound except after the sentence of the judge, or at least after the petition of the injured person; for no one is judged to obligate himself morally beyond that which is required by natural law, unless he explicitly declared this.

(B) By French civil law, compensation is owed on account of non-execution of a contract as often as the debtor is in delay, and at the same time damage arises from juridical fault, or from the omission of ordinary diligence which the laws presume and require.¹ But generally he is not held concerning fortuitous event, unless he obligated himself to this, or some fault preceded the fortuitous event itself.²

¹ Cod. civ., art. 1136, 1142, 1145-1155, in Supplem., p. 80*; Planiol, II, n. 221-277.

² Cod. civ., art. 1148, 1302, 1807, 1881, in Supplem., p. 81*, 89*; Planiol, n. 231-233.

662. 1. On an obligation confirmed by oath. Sometimes the contracting parties, or at least one of them, obligate themselves to furnishing something under the faith of a promissory oath; it is asked whether from this a new obligation arises. To solve this, it must be kept in mind that an oath in this case is something accessory to the contract, since it is only added to it. Now a threefold hypothesis can be imagined, according as the contract is valid, invalid, or rescindable.

(A) If the contract is valid and firm, the oath adds another obligation to the natural obligation, namely the obligation of religion; and therefore, if it is broken, there will be a twofold malice, against justice and against religion. - But the obligation of the oath is not broader than the obligation of the contract, and, when the latter ceases, the former also ceases: for the accessory follows the principal.

(B) If the contract is invalid from natural or divine law, - because, e.g., free consent is lacking, or the object is illicit, - the contract does not become valid from the oath, which cannot supply consent nor be a bond of iniquity; - nor does the oath itself have force, since the accessory follows the nature of the act to which it is added.

663. (C) If the contract is indeed valid by natural law, but invalid or rescindable from civil law, a distinction must be made between the oath itself and the contract to which it is added: (a) the oath is valid, and therefore must be observed, unless a dispensation has been obtained from it. For he who sanctioned by oath a promise of doing something which is good in itself, - e.g., a minor who swore that he would not rescind a contract otherwise just, - is bound, by virtue of religion, to keep the promise: for the obligation arising from oath is grave, and moreover the minor, by not seeking rescission, does not undergo a grave inconvenience. But if a dispensation has been granted by ecclesiastical authority, now the obligation of religion ceases, and rescission can be sought.

(b) But it is controverted whether by such an oath the contract which was rescindable becomes firm and valid, and therefore immediately obliges the two contracting parties from the virtue of justice. Formerly by Roman civil law a contract was strengthened by oath; but today, in French law, and in many other codes, this is not admitted; and since the matter here concerns temporal matter, the provision of civil law can be observed in conscience;¹ and therefore he who, using the benefit of the law, seeks rescission of the contract does not injure justice, but only religion.

¹ But in sacred matters, which must be judged from canon law, by oath a contract otherwise rescindable becomes firm, because, as Alexander III says, "it is not safe for anyone to come against his oath, unless such an oath is one which, if observed, tends to the ruin of eternal salvation" (Decret. Greg. IX, lib. II, tit. 24, c. 8, p. 361, ed. Friedberg).

664. N. B. In the aforesaid cases it is supposed that the oath was freely furnished; but if it was so extorted by fear that it can in no way be called free, it is not valid, nor therefore adds any force to the contract; if fear did not remove deliberation of mind, more probably the oath has force, but a dispensation from it can easily be obtained. Hence if someone, from fear of death, promised money by oath to a robber, strictly speaking he is not bound to pay it, but for caution he can seek a dispensation from the oath.

665. 2. On conditional obligation. Sometimes a condition is added to a contract, and therefore the obligation is called conditional, insofar as it depends on the fulfillment of the condition. - The condition added can concern the present, the past, or the future. If it concerns the past or the present, even uncertain, it does not suspend the obligation, but at that very instant at which the contract is entered, the obligation exists or does not exist, according as the matter has happened or has not happened.

Therefore it remains to speak of the obligation which depends upon a future event. But this can be twofold: suspensive, when the existence of the obligation depends on the fulfilled condition; resolutory, when an obligation already existing at the time of the contract, afterward, the condition having been fulfilled, is resolved or removed, e.g., I sell you this horse, yet under this law, that the contract be null if war is stirred up within ten days. - Let us explain this briefly.

(A) On the effects of a suspensive condition. (a) Before the event, the obligation is suspended, and therefore the debtor preserves the dominion of the thing, while the creditor acquires only a conditional right. (b) When the condition has been fulfilled, the contract immediately becomes perfect, without renewal of consent, and the obligation is judged to have existed from the day of the contract entered. (c) When the condition is lacking, the contract is judged to have been invalid from the beginning, and therefore to have begotten no obligation; hence if the thing had already been handed over, it must be restored with the fruits received.

666. (B) On the effects of a resolutory condition. (a) Before the event, the contract is held as valid, and the debtor is held by the same obligations as if the contract were firm; thus he must furnish or hand over the thing promised. (b) When the condition has been fulfilled, the contract is dissolved, without any sentence of the judge, and therefore the obligation arising from it is judged never to have existed. (c) When the condition is lacking, the contract becomes altogether firm, and from it the same obligations arise as if no condition had ever been added.¹

¹ Cod. civ., art. 1168-1184; Supplem. for France, p. 83*-89*; Planiol, II, n. 374-388. - On obligations for a day, alternative, in solidum, divisible and indivisible, with stipulation of penalty, see Cod. civ., art. 1185-1233.

We treat: 1. of the notion and division of contracts; 2. of the requisites for a contract; 3. of the effect or obligation of contracts.

249. Notion. A contract is the consent of two or more persons in the same determination, manifested by a sensible sign, giving rise to an obligation in at least one of the contracting parties; or, briefly, according to Roman law: "it is the pact and consent of two or more persons in the same determination."¹

It is said, 1: of two or more persons in the same determination, to signify the subject of the contract, which cannot exist unless at least two persons consent in the same determination, i.e., something known and approved. Therefore acts of the intellect, i.e., the determination, and of the will, i.e., consent, are required for a contract.

It is said, 2: consent, because without true internal consent no contract obliging in the internal forum can arise, just as a son does not arise without a father. Consent is both the efficient and formal cause of a contract, as is especially worthy of note for the matrimonial contract.

It is said, 3: manifested by a sensible sign, because interior consent does not yet induce an obligation unless it has been manifested to the other contracting party by some sensible sign. Thus, at least, if there is question of a contract between men; for in contracts which are made between God and man, e.g., in a vow, which is a contract of promise, sensible manifestation is not required.

It is said, 4: giving rise to an obligation in at least one of the contracting parties. For a contract is: a) a promise given and accepted; but such a promise gives rise to an obligation, at least unilateral (indeed bilateral, if it was mutual or reciprocal); b) it is a private law which one voluntarily imposes upon himself and which is confirmed by both civil and natural law.²

There is a twofold source from which the right of contracting flows: 1. from natural law, because human society cannot suitably be preserved unless there is a free faculty of entering contracts; and 2. from human law, which establishes and governs diverse modes of contracting, so that all things may be arranged according to justice and equity.

¹ L. 1, § 2, D. de pactis 2, 14.

² Cf. Billuart, De contract. diss. 1, a. 1.

250. Divisions. Among the many divisions of contracts, the following seem more necessary for the confessor's use:

1. A formal or express contract and a virtual or tacit contract.

The former is that which is made by words, writings, and other signs formally manifesting the consent of the contracting party. The latter, however, is that which is had implicitly in the undertaking of some office or function; e.g., a physician exercising his art makes an implicit contract of doing all those things which his profession requires. A tacit contract is wont to be called a quasi-contract.

2. A named contract and an unnamed contract.

A named contract has a special name, such as purchase, lease, etc.; an unnamed contract, however, lacks its own name in law and is fourfold: I give that you may give; I give that you may do; I do that you may give; I do that you may do. Note, however, that what is given or returned in an unnamed contract ordinarily cannot be money; otherwise it would be a named contract. Therefore unnamed contracts are rather exchanges; e.g., I give you my book that you may give me your vote. Frequently they also induce an obligation of fittingness rather than of strict justice.

The older authors were accustomed to subdivide the named contract into that which is for the utility of both contracting parties and that which is for the utility of only one. Of the first kind there are nine: purchase, to which sale is opposed; leasing; hiring; census; exchange; emphyteusis; fief; insurance. - Contracts of the second kind are: loan for consumption, loan for use, precarium, pledge, mortgage, suretyship, deposit. - In our times a loan for consumption and a mortgage now tend to the utility of both contracting parties, since they are not wont to be granted without interest.

3. A unilateral contract and a bilateral or synallagmatic contract.

The former causes an obligation on the part of only one of the contracting parties, e.g., a contract of gratuitous promise; the latter produces a strict obligation for both contracting parties, e.g., purchase, lease, etc. - A bilateral contract is wont to be subdivided into commutative and aleatory. A commutative contract, which is also wont to be called a contract of certain outcome, is that in which something is to be given or done independently of a fortuitous event, e.g., purchase and sale. An aleatory contract³ is that in which something is promised or given only under a fortuitous event, e.g., in gaming, a wager, insurance.

4. A gratuitous contract and an onerous contract.⁴

A gratuitous contract yields to the utility of only one contracting party, e.g., donation; an onerous contract imposes a burden upon both contracting parties, e.g., sale, in which one is bound to deliver the merchandise and the other the price.

5. A principal contract and an accessory contract.

A principal contract does not depend upon another contract, e.g., a free sale; an accessory or subsidiary contract depends upon another contract and strengthens it, e.g., a mortgage.

6. A solemn contract and a simple contract.

A solemn contract observes all formalities prescribed by positive law, e.g., a testament made before a notary. The other observes only the conditions of natural law, e.g., an informal testament, but one clearly expressing the will of the testator.

7. A clothed contract and a naked contract.

A solemn contract is almost the same as a clothed contract, the execution of which is compelled by a civil judge because it was entered according to civil law. A simple contract, however, is the same as a naked contract, which indeed induces a natural obligation but is not recognized by positive law.

8. A pure (or absolute) contract and a conditional contract, according as no condition or modification, or some condition or modification, is appended to the contract.

9. A consensual, verbal, literal, and real contract.

This distinction was very celebrated in ancient Roman law and is also found in certain modern codes. A consensual contract is perfected in the manifestation of consent alone, whether this is done according to the formalities prescribed by positive law (a solemn contract) or without them (a simple contract). A verbal contract is the same as a stipulation and requires a determinate form of words. A literal contract requires for validity that it be drawn up in writing. Of this kind is a contract of espousals according to the new law. Finally, a real contract is that which is perfected not by consent alone but by the actual delivery of the thing, such as a loan for consumption, a pledge, or a deposit.

³ A contract of chance (Glücksvertrag).

⁴ In German: gratuitous and onerous contracts (unentgeltliche und entgeltliche Verträge).

251. Scholion. On the force of civil law in contracts. Since it is of the greatest interest to human society that all contracts be duly entered, the civil laws of all nations have established many things concerning the modes of contracts. Hence there arises the truly momentous question: how far do these statutes of civil law oblige in conscience? It is indeed certain that the power of invalidating, for a reasonable cause, acts of subjects which otherwise would not be invalid by natural law belongs to the civil authority. For a power of this kind is necessary for the effective direction of society. Hence authors also most commonly attribute to the civil ruler the power of establishing diriment impediments in the marriages of the non-baptized.⁵ But the invalidation of contracts valid by natural law can be made by civil law in a twofold manner: namely, 1. by directly affecting the acting person; or 2. by more directly affecting the act itself. In the former manner, the will of the agent is rendered ineffective either absolutely⁶ or relatively.⁷ Thus, e.g., according to German law, one who has been judicially declared such on account of defect of mind,⁸ or one who is civilly dead, is absolutely incapable of any contract. According to French law, however, a minor who has not completed sixteen years is absolutely incapable of disposing of his goods by donation or testament.⁹ - In the latter manner, numerous civil statutes concerning prescribed formalities directly affect the act of the contract itself, e.g., in the sale of immovable things, in making a testament, etc. But whether these prescribed formalities so affect the act that without them it is invalid even in conscience is an arduous question which cannot be resolved by a general rule and which in individual cases depends upon the mind of the legislator. Moreover, this mind is often doubtful. For since legislators have not only Catholic subjects but also unbelievers who care little about obligations of the internal forum, they generally abstract from obligation in conscience.

Nevertheless, it seems better if even then an obligation in conscience is attributed to civil laws, unless the legislator expressly determines that the act is merely rescindable or merely unrecognized in the public forum. The reason is that the common good cannot be sufficiently consulted, nor the indemnity of the weak provided for, when no obligation in conscience is attributed to laws invalidating a contract except after the sentence of a judge. For then those laws would profit the wicked and harm the good; for the good, who hear the voice of conscience, would not use them against others, while the wicked, who attend only to the external forum, would use them whenever they favored themselves. - Furthermore, from such a divorce between the internal and external forum, occasion would be furnished for many sins and quarrels, because some would claim goods for themselves according to civil law, while others would compensate themselves secretly according to natural law. The so-called informal testament, which according to natural law is valid but according to civil law is invalid,¹⁰ furnishes a classic example of nearly insoluble difficulties. Finally, there is also the fact that not only great doubts but even dire persecutions can arise for the confessor if, in this matter, he denies to civil law every obligation in conscience before the sentence of a judge. Since these things are so, the confessor acts more prudently and more truly if in the matter of contracts he inculcates observance of the civil laws, and all the more so since the Code of Canon Law, c. 1529, expressly decrees: "What civil law establishes in a territory concerning contracts both in general and in particular, whether named or unnamed, and concerning payments, shall be observed in canon law in ecclesiastical matters with the same effects, unless they are contrary to divine law or otherwise provided by canon law."

⁵ Below, in the tract on matrimony, III, n. 651.

⁶ Legally incapable (geschäftsunfähig).

⁷ Limited in contractual capacity (geschäftsbeschränkt).

⁸ German Civil Code § 104.

⁹ French Civil Code, art. 903.

¹⁰ Cf. below, n. 277.

Four things are essentially required: 1. suitable matter; 2. a capable person; 3. legitimate consent; 4. a fitting form.

259. By natural law it suffices that contracts be effected by the legitimate and clearly manifested consent of the contracting parties. But by positive laws (whether ecclesiastical or civil), some determinate form or solemnity is often established under pain of nullity. But are contracts entered without that form which is held essential in the external forum valid? If the essential form required by ecclesiastical law is lacking, then the contract is null even in the forum of conscience. Hence, e.g., espousals, matrimony, alienation of ecclesiastical goods, etc., made without the essential form established by the Church are invalid. But if there is question of an essential form required by civil laws, then there is a threefold opinion: the first affirms validity; the second denies it; the third says that the matter is doubtful, since so many authors of great name dispute on either side, and therefore that the possessor is to be preferred until he is condemned to restitution by decree of a judge. Certainly this third opinion is to be followed in practice;⁵¹ but the second opinion, denying validity when the essentially prescribed form is lacking, seems to us more true. For if ecclesiastical law can declare certain contracts null unless they were entered under a determinate form (e.g., espousals, religious profession), there is no reason why the same right should not be granted to civil law in purely material contracts. Hence authors most commonly grant such an invalidating faculty to the civil power.

The only doubt remaining is whether the civil power truly intended to annul contracts without the prescribed form. But this is a mere question of fact. When civil law simply and without any restriction declares those contracts null, the words of the law are to be taken as they sound, and the contracts are to be held as null. Thus also Lugo.⁵²

⁵¹ Cf. St. Alphonsus, Theol. mor. l. 3, n. 711.

⁵² De iust. et iure disp. 22, n. 252.

St. Alphonsus, III, 707; ed. G., II, p. 174; Lugo, disp. 22; Lessius, l. 2, c. 17 ff.; Salmanticenses, de Contr., tr. 14, c. 1; Comitolus, de Contr. universe; Vermeersch, Quaest. de Just., q. 7; Marres, l. 3, n. 1-6; Berardi, Theol. mor., III, n. 505; Schwane, die Vertrage; Carriere, de Contr.; Wernz, Jus Decret., III, tit. 9, p. 228.

We must treat: 1. of the notion of contract; - 2. of the requisites for contracting; - 3. of the effect, or of the obligation, of contract.

1032. DEFINITION. A contract is the consent of two or more persons into the same agreed thing, with the mind of contracting an obligation.⁰¹

It is said: 1. consent, that is, a practical determination of the will; - 2. of two or more, because there is no obligation of justice or fidelity unless at least between two; - 3. into the same agreed thing, that is, concerning something to be given or done, which must necessarily be understood by all in the same way; - 4. with the mind of contracting an obligation; otherwise it would be a mere purpose.

In every contract three things are distinguished by jurists, namely essence, nature, and accidentals. To the essence belong those things without which the contract cannot exist: as, for example, in sale, the thing, the price, and consent. If one is lacking, there is no contract. If in place of a price, for example, another thing is given, it will not be a contract of sale, but of exchange. To the nature belong those things which, although not expressed, nevertheless from law, or usage, or equity, are understood to be comprehended in the contract, although they are not essential. Thus, for example, in sale, security against eviction can be excluded by a special agreement; but if no condition is expressed, the seller must furnish such security (cf. n. 1125). Finally, accidentals are called those things which can be joined to the contract without being considered added by law or by the nature of the thing; for example, such a delay in payment of the price and similar things.

1033. There is a twofold SOURCE from which the right of contracting emanates: a) from nature, that is, from the mutual need of men, which drives them to enter upon mutual obligations and grants them the power of entering upon these; b) from human law, which generally so establishes and governs the modes of contracting that citizens are neither impeded from the equitable exercise of right nor permitted gravely to abuse it to the destruction of others. But although the civil law, on account of the public good, can limit the natural right of private persons, as we said above, n. 838, yet it cannot violate it, nor validly establish anything against Ecclesiastical Law (cf. n. 149).

1034. DIVISION. A contract is: 1. Formal or express, or virtual or tacit. The former is that which is made by words, writings, or other signs directly manifesting consent. But the latter is that in which consent into the thing agreed upon indeed exists really, but is manifested only implicitly by some saying or deed.

Thus a physician exercising his art is considered to promise that he will do everything which his profession requires, according to the saying of Law: "you pledge the skill of the art." This contract is commonly called a quasi-contract.

2. Named or unnamed. A named contract has its proper name in Law, as purchase, lease, etc.; an unnamed contract lacks a proper name in Law. All unnamed contracts are reduced to four species, namely, I GIVE THAT YOU MAY GIVE; I GIVE THAT YOU MAY DO; I DO THAT YOU MAY GIVE; I DO THAT YOU MAY DO.

3. Unilateral or bilateral or synallagmatic. The former is made when one or more bind themselves toward one or more who are not bound, as in the contract of promise. The latter is had when one or more bind themselves toward one or more others likewise bound, as in various exchanges. It is a contract strictly taken. - Yet, even some gratuitous contracts are bilateral, for example deposit, loan for use.

A BILATERAL contract is commutatory or aleatory. It is commutatory if each contracting party is considered to give or accept something equivalent and certain, as in sale. It is called aleatory, or of fortune, if what is given or promised depends on an accidental event, as in games of dice.

4. Gratuitous or onerous. Gratuitous is that from which one party alone receives a benefit which the other party grants to him gratis, for example donation, loan for use. Onerous is that from which each party undertakes a burden for a benefit, for example sale, lease.

5. Principal or accessory. Principal is that which does not depend on another contract, as sale, exchange, donation, etc. Accessory or subsidiary is that which depends on another, and is ordered to its fuller security, as suretyship, pledge, and hypothec.

6. Solemn or simple, according as it requires special formalities of law, or is subject only to general dispositions. Simple is subdivided into written and verbal.

7. Naked or clothed. A naked contract is that whose natural obligation is not confirmed by Positive Law. - A clothed contract is that which, besides agreement, has the support of Law. This confers an action for demanding execution before tribunals; to the former also, in NEW Law, favor is generally conceded, provided it can be proved (see Lehmkuhl, I, n. 1241). Thus, for example, the Law protects the retention of what has been received.

8. Real or consensual. Real is that which, in its species, is not perfected except by delivery of the thing agreed upon, as is loan for use, loan for consumption, deposit, etc. Consensual is that which is completed by the consent alone of the contracting parties duly exhibited, as is lease.

9. Pure, or absolute, or non-pure, or conditioned, according as no condition or some condition is appended to it.

10. Firm or rescindable, according as its binding force at once becomes absolute, or can be constituted void by competent authority.

Four things are essentially required: 1. apt matter; - 2. a capable person; - 3. legitimate consent; - 4. a fitting form.

1053. By EXTERNAL FORM is here understood the external manifestation of mutual consent. By the law of nature indeed, no determined mode and no peculiar conditions are required. But Positive Law commands that certain FORMALITIES sometimes be observed, and of these some are accidental, while others are essential. Accidental formalities are those whose omission does not weaken the contract, but obliges only to paying a penalty, or also deprives the contracting parties of civil action. Essential formalities are those whose omission invalidates the contract in the external forum.

In modern Law, the form required for marriage, testament, donation, and hypothec is commonly held as essential. What is prescribed for the other contracts is held as accidental, required for proof in the external forum. Cf. German Code, 125-129; Austrian, 883-886.

1054. IT IS ASKED. Whether contracts which are declared null by civil laws, when they lack ESSENTIAL formalities, are already invalid also in the forum of conscience before the sentence of a judge, or only rescindable?

Resp. There is controversy. Certain contracts are called invalid by some authors, concerning which the intention of the legislator, thus irritating, seems sufficiently declared from the context of the words.⁰⁷ Yet the more common and more probable opinion holds that they must be considered, not invalid by full right before the sentence of a judge, but only rescindable. The reason is that the irritating force of the law is not sufficiently established, as is clear from the various opinions of jurists.⁰⁸

With the controversy standing, favor must be given to the possessor until it is established otherwise by a judge.

Note. What we have said concerning defect of form commonly has force for other defects which by Positive Law irritate or weaken some contract licit and valid by its nature. Recall the things said n. 186 and 188. See also n. 1068, 1081, etc.

828. Definition. - A contract is an agreement through which one or several obligate themselves toward one or several others to give, do, or omit something.

Division. - A contract is chiefly distinguished:

1° Into unilateral (unilateral) or bilateral (bilateral). The former is made when one or several obligate themselves toward one or several not obligated, as in the contract of gratuitous promise. The latter is had when one or several obligate themselves toward one or several likewise obligated, as in exchanges.

2° Gratuitous or of beneficence, which is also called imperfect; or onerous, which is also called perfect. It is also called synallagmatic from the Greek words syn (with) and allasso (I exchange). A gratuitous contract is called one from which only one party receives an advantage (whether mutual obligation arises from it or not). But onerous is one from which each party receives an advantage. Therefore this division does not fall back into the preceding. For there are given gratuitous contracts from which mutual obligation is given, as loan for use, deposit, loan for consumption, etc.

But an onerous contract is again subdivided into commutative and aleatory. It is commutative if one contracting party gives a thing in one species and the other gives an equivalent thing or one of a diverse species. It is aleatory (contingent) if one gives a thing, but the other contracting party gives not a thing, but the probable hope of obtaining some thing; which hope, since it can fail, causes a contract of this kind to present the likeness of a game of chance.

3° Solemn (contract by deed or specialty) or simple (simple contract), according as it requires special formalities of law or not. Simple is subdivided into written (written) and verbal (verbal). (v) p. 475.

4° Named or unnamed according as it has a proper name, as for example sale, or lacks a proper name, for example I give that you may give, I do that you may do, etc. (p) p. 475.

5° Naked or clothed. A naked contract is called one from which in the external forum action is not given. Such is that which lacks the form required by law, but not precisely that in which the form prescribed by law has indeed been observed, but which cannot be proved in the civil forum because of defect of witnesses or instruments, and from which on account of this cause action is not given by accident. A clothed contract is one which besides the obligation of conscience produces an action in the civil forum.¹

6° Formal or express (express), or virtual or tacit (implied). The former is one which is made by words, writings, or other signs explicitly manifesting consent. But the latter is one whose consent into the agreed thing does indeed exist really, but is manifested only implicitly by some saying or deed. Thus a physician exercising his art is judged to promise that he will do that which his profession requires. This contract is also commonly called a quasi-contract.

7° Real, which is not perfected in its species except by the handing over of the thing concerning which agreement is made, of which kind are pledge, loan for use, deposit, etc.; and consensual, which is completed by the consent alone of the contracting parties duly exhibited, of which kind is lease.

8° Pure or non-pure. Pure is so called when it is simple and burdened by no adjunct; non-pure, when it has something adjoined.

9° Of good faith and of strict right. That of good faith is one in which the judge can moderate many things from the equitable and good, namely those things which according to good faith are judged to be contained in the contract; such are purchase, lease, hire, management of affairs, mandate, deposit, pledge, partnership. Of strict right is that in which the judge is altogether bound to the words of the contracting parties, yet in such a way that they serve their manifested intention; such are testament, loan for consumption, donation. This pertains to the forum which they call "court at law"; but the former to the forum which is called "court of equity or chancery." In the forum of conscience equity is especially regarded.

10° In action (in action or executory), if it must afterward be committed to execution; or in possession (in possession or executed), if it is already committed to execution. "If, for instance, one person sells and delivers goods to another for a price paid, the agreement is executed, and becomes complete and absolute; but if the vendor agrees to sell and deliver at a future time and for a stipulated price, and the other party agrees to accept and pay, the contract is executory, and rests in action merely."¹ From this contract there is given a right to the thing and a personal action; from that one, a right in the thing and a real action.

829. • In every contract three things are to be distinguished, namely essence, nature, and accidentals. 1° To the essence pertain those things without which the contract cannot exist. Thus, for example, in the contract of sale three essentials are given, namely thing, price, and consent. If one is lacking, there is no contract. If in place of price, for example, another thing is given, it will no longer be a contract of sale, but of exchange. 2° To the nature pertain those things which, although not expressed, are nevertheless understood to be comprehended in the contract from law, or custom, or equity, although they are not essential; for example security furnished against eviction of the thing sold, which could be excluded by the contracting parties without the sale being invalid. But if the condition is not expressed, the seller ought to furnish security for the thing sold. 3° Accidentals are called those things which can be adjoined to a special contract by agreement, without being judged adjoined by law or by the nature of the thing; for example such a delay of price, or other things of this kind. - Bouvier, etc.

These things having been premised, it occurs to treat 1° concerning the requisites for contracting; 2° concerning the obligation of contract; 3° concerning the modifications of contracts.

Three things are required: 1° apt matter; 2° capable subject; 3° legitimate consent.

830. • The matter of contract generally is things and deeds, or all those things which can fall under man's dominion, and concerning which the contracting parties have free administration.

The matter of contract ought to enjoy these conditions, namely it ought to be possible, existing, honorable, proper to the contracting party, certain, estimable by price.

1° Possible, both physically and morally; because no one can be obligated to the impossible. Therefore no one can be obligated to avoid fortuitous events, since this is impossible. Hence if someone takes them upon himself, he obligates himself only to repair damages coming from them.

2° Existing, either in reality or at least in certain hope, or probably going to exist; otherwise no right could be had in it, as being something estimable by no price.

3° Honorable and licit in itself, that is, prohibited by no right; because no obligation can be given to a dishonorable and prohibited thing. But for the validity of a contract it is enough that the matter be substantially honorable; for a contract can be valid, although illicit on account of some accidental circumstance.

4° Proper to the contracting party; for no one can transfer to another a right which he himself does not have. Hence the sale of another's thing is invalid, at least as to the transfer of the thing, although not always as to the transfer of the price.

5° Certain and determined, whether in individual, or in quantity and quality; otherwise the contract would be illusory, as if I promised someone, for example, any animal whatever, or grain in general. For I would satisfy the promise by giving a gnat or one grain of wheat, which would be absurd.

831. Questions. - Query 1° Can you accept a price for your action already owed to someone from justice, if the same action can profit another, with the right of the prior one to whom it is owed uninjured?

Resp. Affirmatively. The reason is that you do not injure the right of the former, with whom you had contracted, and you furnish yourself useful to the latter. Thus, for example, if Titius has hired you to go to a certain place for the sake of transacting some business, you can also be hired by Peter to make that journey for transacting a new business, provided the later mandate does not harm the former. See L. IV. 862.

Query 2° Can a price be accepted for a thing owed, not indeed from justice, but from another virtue, for example if you accept money to fast in the time of Lent?

Resp. Affirmatively, at least more probably, because that price then by donation acquires a right which it previously lacked.¹ Nevertheless, it is supposed that the action or thing to which the donee is bound is estimable by price; otherwise the contract would be invalid. Hence he would be bound to restitution who exacted money for showing the way to a man passing by, when he can show it without any labor or loss of time; for that action is not estimable by price.

Query 3° Is the contract valid if the matter is only partly possible?

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

832. • Query 4° Can a merely spiritual thing be the object of a contract, whether gratuitous or onerous?

Resp. to the 1st. Affirmatively. For nothing in natural right stands in the way, since agreements of this kind have nothing disordered; nor does divine right, since God has permitted, indeed commanded, the gratuitous communication of spiritual things. Thus from the obligation of fidelity you can promise prayers, Masses, Relics, etc.

Resp. to the 2nd. 1° Affirmatively, if the thing is spiritual on each side and no prohibition of the Church stands in the way, because then no simony can be present in the exchange, since there is no comparison of a spiritual thing with a temporal one.

2° Negatively, however, if a merely spiritual thing is on one side, but a temporal one on the other; because no comparison between the spiritual and the temporal can be given, as is established from what was said concerning Simony, n. 352 and following.

833. • Query 5° Can the matter of an onerous contract be a temporal thing annexed to a spiritual thing?

Resp. 1° Affirmatively, if it is annexed antecedently, the prohibition of the Church in particular cases being set aside, provided nevertheless that the price is not increased because of the spiritual thing annexed. - See what was said concerning Simony, ibid.

Resp. 2° Negatively, if it is annexed consequently, at least from ecclesiastical Law. But this question chiefly regards benefices.

Resp. 3° But if it is annexed concomitantly, distinguish: 1° Negatively, if it is annexed intrinsically and necessarily, because then the temporal thing has no value independently from the sacred thing, such as is the labor of the priest in celebrating, absolving, etc. - 2° Affirmatively, however, if it is annexed extrinsically, as was said concerning Simony, ibid.

834. • Query 6° Must a thing received from a base contract always be restored?

Resp. 1° Before the placing of the base work, affirmatively; because the dominion of this thing has not been validly transferred. - Thus all.

Resp. 2° After the placing of the work, it is controverted. A twofold probable opinion is given.

The 1st Opinion, common and more probable to S. Alph.,¹ says that the price can be accepted and retained, indeed also must be given from justice. The reason is 1° because there intervenes there a twofold contract: one absolute, namely concerning a base work to be placed for a price, and this is void; the other conditioned, concerning the handing over of the price if the base work has been placed, and this, when the condition has been fulfilled, becomes valid. For once the work is placed, there now arises the contract, I give that you may give, whose nature demands that always, as often as one contracting party has furnished his own part, the other be bound to fulfill his own if he can do so licitly. 2° Because although the base action, insofar as illicit, is worthy of no price, nevertheless, insofar as laborious, ignominious, dangerous to the agent, it has a price.

The 2nd Opinion, sufficiently probable, denies it, from Rule of Law 18 in the Sixth: What does not stand by right from the beginning is not confirmed by the passage of time.² Our law agrees.³

Therefore for the internal forum the possessor must be favored. But according to the patrons of each opinion, and Resp. S. Poen. (Scav. T. II. n. 393), the price of prostitution can be retained.

Query 7° Whether, if a man has given something to a woman in order to seduce her, can she, after consent has been denied, retain the thing?

Resp. Affirmatively, because no agreement concerning sin to be perpetrated intervened, and therefore the donation must be held altogether liberal, since the woman promised absolutely nothing on her part.² Yet the one accepting will with difficulty be excused from the sin of scandal and cooperation,³ if she knows with what mind the donation is made.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

840. • By our law a wife can contract:

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

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

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

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

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

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

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

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

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

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

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

II. Aliens are held as citizens:

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

2° As to contracts concerning movables.³

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

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

1° its qualities; 2° the opposed defects.

845. • Consent ought to be external, internal, mutual, free and deliberate.

1° External, that is, manifested, because it ought to be made known to the co-party; but it cannot be made known to the other party unless it comes forth exteriorly by some visible sign.

2° Internal, because the obligation of a contract arises from the will alone of the contracting party. - Thus commonly.

3° Mutual, because a contract is an agreement of two or several; hence, if it is onerous, cession and acceptance are required on both sides. If it is gratuitous, cession is required on one side and acceptance on the other.

4° Free and deliberate, so that the contracting party is not only master of himself, but also acts with that deliberation which is required for grave sin; otherwise the will would be imperfect, and therefore the act imperfect, which could not produce a perfect obligation.

846. Questions. - Query 1° Is a contract valid which has been entered without the mind of obligating oneself, or without the mind of fulfilling it?

Resp. to the 1st. More probably it is not valid, because the condition appended is contrary to the substance of the contract.¹

Resp. to the 2nd. The contract is valid. The reason is that the will not to fulfill can stand together with the will to obligate oneself.²

Query 2° Must the consent of each party be elicited simultaneously?

Resp. Negatively, because the consent of one once given, and not revoked, morally perseveres, so that, when the consent of the other accedes, the contract is at once perfected.

847. Resolutions. - 1° He who fictitiously consents to a contract is bound in the forum of conscience to render the deceived party unharmed, and, if no other means of repairing the injury is available, to furnish internal consent and to stand by the contract.³

But if the contract fictitiously entered has been committed to execution, no dominion has in fact been transferred. "Whence, by reason of the thing accepted, the deceived party must be held as a possessor of good faith, but the deceiver as a possessor of bad faith."

2° If I offer you my house for sale for $100, and you accept, the contract is perfected, not when you internally consent, but when your acceptance comes forth externally to me through some sign. But my consent is sufficiently intimated to you by the fact that I offer you my house for the stated price.

3° If you contract with me through a procurator, the contract is perfected when your procurator accepts, even though you have not yet accepted, because the acceptance of your procurator is morally yours.

4° Silence is regularly regarded as consent if the matter is favorable to the one silent. Hence Rule of Law 43 in the Sixth: He who is silent seems to consent.

5° If Paul says before John: I give $100 to Peter; and if John, unbidden, reports this to Peter, and the latter says: I accept; Paul is not judged obligated; because the intimation of the promise was not made to Peter by Paul's mandate, who moreover showed nothing else by the reported words except the mere purpose of giving.

The principal are error, fraud, force, and fear.

848. • Error in contracts can turn 1° about the substance of the thing, as if you buy copper for gold; 2° about the nature or species of the contract, for example, if you take a lease for a sale; 3° about the quality or accidents of the thing, as if a horse is slow while it is reputed swift; 4° about the person, for example, if someone should give to Peter, wishing to give to Paul; 5° about the motive, for example, if you should give something to Caius on account of poverty or piety, while he is rich or impious.

Yet error about quality, although accidental, can be the cause of the contract.

849. Principles. - I. Every error about the substance of the thing or the nature of the contract renders the contract null. The reason is that then there is no consent, which regards an altogether diverse thing.¹

II. Error about quality alone does not of itself invalidate a contract, at least if, with the error known, the contract nevertheless would have been entered. For consent wholly voluntary about the principal object of the agreement is had. But if, with the error known, the contract would not have been entered, it is controverted, as we shall say at once.

850. Questions. - Query 1° Does error about quality giving cause to the contract void the contract, whether onerous or gratuitous?

Resp. 1° More probably negatively as to onerous contracts, because such an error impedes neither knowledge nor consent as to the substance of the thing. But otherwise scarcely any contract would be valid, which would cede to the subversion of human commerce. Except, 1° if the quality is expressly intended as a condition without which not, because then it passes into the substance of the thing; 2° if the error was invincible and the thing is still intact; but if the thing is no longer intact, or has already been fulfilled by the other party, you can rescind the contract in conscience, if the matter is of great moment, even though the other party was not conscious of the error.²

Resp. 2° As to gratuitous contracts, more probably affirmatively. The reason is that such contracts by their nature require a full voluntary and complete spontaneity; but this was plainly lacking when the cause moving to donate is supposed to be absent. - Thus commonly against some, who moreover admit that contracts of this kind are rescindible at the will of the donor thus deceived. See St. Alphonsus.¹

Query 2° Does error about the person invalidate a contract?

Resp. 1° Negatively, speaking generally, as to onerous contracts, because in these an error of this kind is merely accidental; and it is indeed of little interest both to the seller to whom he sells the thing, provided he receives a suitable price, and to the buyer from whom he buys, if the thing is suitable to him. The contract of marriage must be excepted, in which the consent affects the very person, who becomes at once both the contracting party and the object of the contract itself.

Resp. 2° Affirmatively, for the most part, as to gratuitous contracts, because in these the person of the donee is usually specially intended by the donor. Yet the circumstances of things must be considered, from which the will of the benefactor can better be known.

851. • Query 3° Does error about the motive invalidate a contract?

Resp. 1° Affirmatively, if the error falls upon the final motive: for example, if you should give alms to Titius because you judge him poor, when he is rich; for your consent as to the very substance of the thing is lacking.

Resp. 2° Negatively, if the error falls only upon an impelling motive; for example, if you should give alms to Peter, a poor man whom you believe very upright, when he is less upright; for this error is merely accidental.²

852. Resolutions. - 1° If a priest at night buys cloth for himself, thinking it to be of black color, while it is green or violet, the contract is not valid, if he expressly declared that he wanted cloth of black color; for although color in itself is a mere quality, in this case it passes into substance, and therefore the error becomes substantial.

2° If, when you wish to buy Catawba wine, California wine is offered, the contract is valid of itself, notwithstanding error or fraud, because the error is not substantial. But justice is injured accidentally if Catawba is dearer; and therefore the seller will be liable to restitution. But if the price of each wine is equal, or if the price is diminished according to the proportion of the excess, the seller will be immune from injustice, although not from the sin of lying. I have said: of itself; because the error could easily be substantial, as for example if the buyer by express words had bound his intention to Catawba wine for a certain end, to which any other wine would not conduce.

3° Fraud differs from simple error in this, that the error arising from fraud was produced by devices applied to this end. Error which of itself would not be sufficient to void a contract can give place to nullity, if fraud has intervened on the part of the other contracting party, who besides is bound to damages arising from the fraud.²

Fear is 1° either grave or light; 2° induced by an intrinsic or extrinsic cause, necessary or free, just or unjust; 3° struck in order to contracting, or to another end. - Recall what was said in n. 15 and following.

853. Principles. - I. Any fear whatever so disturbing the use of reason that it excuses from grave fault utterly voids by every right the contract which follows from it. The reason is that then the consent required for contracting is lacking, whether fear altogether takes away the use of reason, or so impedes it that the consent cannot be called full and perfect.

II. No contract from fear arising from an intrinsic cause, or from a necessary or natural cause, is invalid, unless perhaps he who contracts from fear was not master of himself. The reason is that no injury is inflicted on the contracting party, and from elsewhere he preserves sufficient liberty. The same must be said if fear has been struck by a free cause, or by a man, from a just cause; hence a seducer, driven by grave but just fear to marry the girl whom he seduced, contracts validly.

III. Betrothals excepted, which on account of the greatest liberty that they require from their nature are rescindible, more probably no contract entered from light fear is rescindible. The reason is that light fear from whatever source is reputed as nothing in law, since it can easily be contemned. - Otherwise very grave inconveniences would follow in human commerce, since light fear is most frequent. Lugo contradicts, however, with others, whose opinion is not called improbable by St. Alphonsus.¹ Yet except marriage and religious profession, which, in the opinion of all, are not invalidated by light fear.²

854. Questions. - Query 1° Does grave fear unjustly struck by the co-party in order to contracting void the contract, if it does not at all disturb reason?

Resp. 1° In the opinion of all, and also by our law,³ contracts of this kind are rescindible, whether they are gratuitous or onerous. (x) p. 476.

Resp. 2° Whether they are void by natural right, there is given a threefold probable opinion. According to St. Alphonsus, the very common and more probable opinion is negative, since fear does not simply take away the voluntary.

By Law, however, acts elicited from grave fear are invalid where it is a question 1° of Marriage, and more probably also of betrothals; 2° of handing over goods of the Church and renunciation of a benefice; 3° of a vow and religious profession; 4° of ecclesiastical jurisdiction and absolution from censures; 5° of election of a Prelate.⁴

855. • Query 2° Is a contract entered on account of reverential fear rescindible?

Resp. More probably negatively, because it does not seem of itself a sufficient cause of rescinding a contract, unless at the same time it includes grave fear, for example of long-lasting indignation, etc. ... Likewise not even most importunate entreaties constitute grave fear, unless perhaps they are joined with reverential fear toward a Superior.⁵ Sanchez, Salmanticenses, and others commonly.

Query 3° Is a contract void, or rescindible by private authority, if grave and unjust fear is struck by a third party alone for extorting consent, so that the other party is not participant in the injury?

Resp. It is controverted. The 1st Opinion affirms, because by reason of the injury, even inflicted by a third party, the thing remains obligated to the prior owner, and consequently passes with that burden to any persons whatever. - Billuart, and, as it seems, St. Alphonsus, L. IV. 719, who besides adheres to this opinion if it is a question of Marriage. L. VI. 1045 sq.

The 2nd Opinion denies, because, since neither party has inflicted injury, no reason of natural right is present why the contract should be void and why it could be rescinded at the will of one, the other being unwilling. - Lugo.¹

856. • Query 4° What if grave fear was indeed unjustly struck, but not for extorting consent?

Resp. It is controverted, but it seems it must be distinguished thus: 1° If the fear was struck by the other of the contracting parties, the contract is not valid, or at least is rescindible, because one striking fear is bound to remove all inconveniences which arise from the injury.² Except Marriage. 2° Otherwise, if fear comes from a third party, because none of the contracting parties inflicted injury; but the third party who inflicts fear cannot take away the obligation of the contract by consenting to its rescission, since the contract was not entered with him: nevertheless he is bound to induce to rescission, so that he may avert injury from the innocent party, if this one wishes. Hence the purchase of a sword made from fear of your enemy is valid. Lugo³ excepts marriage, which nevertheless according to the principles of St. Alphonsus⁴ is not to be admitted. Others also except gratuitous contracts, because thus better provision is made for the innocent party, and the other cannot complain, since he is deprived of profit alone, and remains in the state in which he was before; and just as he himself would not wish to be obligated in those circumstances, so neither ought he to obligate the other.

857. Resolutions. - 1° If you threaten someone caught in theft that you will denounce him to the injured master, or to the guard, or to the judge, unless he promises a certain gift to you, the promise holds, and you are not bound to return the gift accepted, unless perhaps by the judgment of a prudent man it seems excessive. This is also true even if you had not had the intention of denouncing him, but only of frightening him, because you would cede from your right of doing this; which is estimable by price.

2° If Titius struck fear into you, so that you might hand over some thing to Caius, the contract is at least rescindible. For if Caius, at the time when he accepts the thing from you, knows the injury inflicted upon you, he is judged to strike fear through Titius. But if he knows it afterward (according to the 1st opinion, n. 855, q. 3°), he would be assimilated to a possessor of good faith, who is bound to restore as soon as he discovers that he has another's thing.

3° If someone prepares damage for you from mere malevolence, and therefore asks nothing from you; but you spontaneously promise money, that you may escape unharmed, you are not bound to hand it over; because, although fear was not struck in order to contracting, nevertheless the contract has as its object only the cessation of unjust vexation; but the vexer cannot sell this cessation: therefore whatever he thus acquires, he receives as a possessor of bad faith, and therefore ought to restore it.

4° If a traveler oppressed by a robber has called a man passing by to aid, promising him money, the promise is valid; because fear is not its cause, but only the occasion; and from elsewhere the aid furnished by the passerby is estimable by price. Yet if the sum was enormous, it would have to be diminished.

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

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

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

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

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

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

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

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

Resp. There is a threefold probable opinion.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

451. Contract in the broader sense means the same as pact (verdrag); but in the strict sense it is a species of pact, namely a pact bringing in an obligation for each contracting party. If one party alone is obligated, strictly it will be a mere pact, for example, a gratuitous promise, or a donation, which obligates only the donor; whence it is called an act rather than a contract. Nevertheless in the present treatise we take the word in the more general sense.

And therefore contract is defined: an agreement by which one or more persons obligate themselves toward one or more others to give, to do, or not to do something (a. 1101). It is said:

1. an agreement, for contract is a species of agreement; and an agreement is the consent of two or more into one and the same settled decision. This is the formal cause of contract: mutual consent, so that if the consent or acceptance of one party is lacking, by that very fact the contract does not exist;

2. by which one or more: these are the subject of the agreement;

3. obligate themselves toward one or more: that obligation does not constitute the contract but is the effect of the agreement;

4. to give, to do, or not to do something: this is the object or matter of the contract, that into which they must consent.

Therefore an agreement which leads to an obligation toward another is a contract; but the obligation is understood to be true, and indeed strict, namely one which is derived from commutative justice. Whence from an obligation undertaken a right is transferred, namely a right in a thing, or a right to a thing. Hence contract can also be defined: the consent of two or more concerning a right to be transferred. And therefore:

1° Contract is an agreement between two or more, by which a certain obligation is produced and consequently some right is transferred; this is done either directly by conferral of a right, or indirectly by extinction of an obligation.

2° It depends especially on the deliberate will of the contracting parties, so that a contract does not subsist without the will of the contracting parties, and of itself does not oblige beyond their will.

3° It is as it were a private law which they voluntarily impose upon themselves, from which, as an effect, there arises an obligation or moral bond, by which each contracting party, or at least one of them, binds himself to the moral necessity of paying, doing, or omitting some thing.

4° Whence it necessarily supposes at least two persons, since no one can contract with himself, or confer a right upon another who does not know or does not accept.

5° Of these one, the promisor or proposer (promettant; toezegger), offers and promises as debtor; the other, the stipulator (stipulant; bedinger, bepaler), acquires the promise or the right.

452. Elements of contract. - In contract three things are distinguished:

1° The essential or substantial things, without which a contract, or such a contract, can neither be nor be conceived. They are three: a) the consent of the parties concerning some right to be transferred; b) the object about which consent can turn, and indeed the object proper to such a contract, for example, merchandise and money in buying; c) the subject, or persons fit for contracting.

2° Natural things are clauses which from law, custom, or equity are wont to be appended and are tacitly included, and are presumed to be present unless they are excluded by explicit agreement, for example, warranty against eviction or hidden defects in buying and selling (a. 1160).

3° Accidental things are those which can be added, but are not judged to have been added except from a special pact, for example, payment in determined money, or delay of payment beyond the time established by law or custom.

453. Contract is divided in many ways:

A. And principally by reason of effect or obligation:

One is unilateral (eenzijdig, eenerzijdsch), which produces an obligation in only one of the contracting parties, as promise and donation (a. 1103); 2) another is bilateral or synallagmatic (tweezijdig, wederzijdsch), when it produces obligations in each of the contracting parties (a. 1102), whether immediately, and then it is perfectly bilateral (for example, buying and selling), or in the other party only mediately and occasionally, and then it is imperfectly bilateral (for example, commodatum).

A perfectly bilateral contract in the stricter sense is a contract whose notion is more fully verified in it; there is a twofold species of it: a) a contract of certain event, or commutative contract (ruilverdrag), when each is judged to give or receive something equivalent and certain; b) an aleatory contract, or contract of uncertain event (kans- of toevalsverdrag), in which the equivalent is uncertain, namely the hope of another thing to be obtained: of making gain or avoiding loss, or when the thing to be rendered depends upon a fortuitous event, or at least the quantity of the thing, as in gaming, insurance, speculations (a. 1104 and 1964).

B. By reason of cause or motive: a) one is gratuitous (de bienfaisance; weldadigheidsverdrag), which is made from the intention of doing good, unto the sole favor and utility of one party, when someone hands over a right to another gratis or without his own emolument (a. 1105); b) another is onerous (à titre onéreux; onder bezwarenden titel), which is made unto the utility of each party, when each receives some advantage and some burden, as in selling or letting (a. 1106); c) another is mixed, which is partly gratuitous and partly onerous, yet simply onerous, as in the sale of a thing for half its value, or in a donation under an onerous condition.

Every onerous contract is bilateral, since it produces a burden and therefore an obligation in each party; conversely, an imperfectly bilateral contract is not necessarily onerous but of itself is gratuitous, as mutuum, commodatum, deposit: although each party is obligated to something, nevertheless only one receives an advantage.¹

¹ Others speak in the contrary way: they call only onerous contracts bilateral, and divide unilateral ones into gratuitous and onerous.

C. By reason of mode or form, one is properly so called, explicit or formal, which is entered into by words, writings, signs, or deeds expressly manifesting consent; 2) another is improperly so called, implicit and virtual, which is entered into by tacit consent by assuming the office of judge, pastor, teacher, etc.: by that very fact implicitly and by force of a quasi-contract the obligation is undertaken of rightly fulfilling the annexed offices.²

² In French civil law quasi-contract is taken in a diverse sense: it is a contract which the law feigns, a presumed contract (a. 1371), a voluntary and solitary deed of man from which he is obligated toward another, and sometimes two are obligated between themselves. The Code indicates only two species: the deed by which someone voluntarily manages the goods of another, whether the latter knows it or does not know it (a. 1372 sq.), and the deed by which someone knowingly or unknowingly receives from another what is not owed to him (a. 1376 sq.).

Of explicit contracts, a) one is consensual, which is perfected by consent alone (bij enkel overeenstemming), and this is simple (eenvoudig) if it is contracted without special formality (sale, letting), whether it is written or not written; or solemn (plechtig) if it cannot be validly contracted without formalities (matrimony, donation of an immovable thing, testament, mortgage); b) another is real (zakelijk), which is perfected not by consent alone but by delivery of the thing, for example, commodatum, mutuum, pledge, deposit.

D. By reason of consent, 1) a contract is absolute or conditioned; 2) it can be pure, to which no special accidental circumstance is added, or qualified, which has annexed to it an accidental quality or modification, for example, a contract to a day, to a demonstration, to a cause, under a mode (a. 1168 sq.). Hence a conditioned contract differs from a modified contract, because a condition suspends the obligation or the resolution of the contract until it is fulfilled; a mode does not suspend, but imposes only the obligation of observing the mode, and if it is not observed the contract nevertheless is not revoked.

E. By reason of denomination, it is 1) named (benoemd), which has its proper name in law; or 2) unnamed (onbenoemd), which lacks a proper name (a. 1107), such as many bilateral contracts, which then are reduced to four categories: do ut des, do ut facias, facio ut facias, facio ut des, or to opposite modes: do ut non faciam, etc. Thus, for example, I give a garment so that you may not exact a debt; I do not exact a debt so that you may labor for me.

F. By reason of subsistence, it is principal, which subsists of itself; and accessory or subsidiary, which accedes to another principal contract, depends on it, and strengthens it, for example, pledge, mortgage.

G. Finally, by reason of relation to human law, a contract is naked or clothed according as it is not recognized by civil law or is fortified by its patronage.

454. Human law, especially civil law, rules contracts, and accordingly defines the obligations and rights of the contracting parties, the manner of entering into a contract, their effects, and even the conditions of the act required for firmness and effect, or also for validity. In this last respect human law can touch contracts in five ways:

1. Sometimes it neither prohibits nor approves them, but does not recognize them nor attribute any force to them in the external forum; thus, for example, gaming contracts (a. 1965: a naked contract, not clothed).

2. Sometimes, in order that it may recognize them, it requires special proof, for example, by writing, witnesses, presumptions (a. 1316). Thus, for example, writing is required when a contract exceeds the value of 1500 fr. (a. 1341 modified by the Belgian law of 21 Apr. 1938): in sale (a. 1582), in letting (a. 1715), in settlement (a. 2044).

3. Sometimes a contract is not declared null through itself since it is not annulled by law, but it is decreed that it can be annulled, for example by a judge, and then it becomes invalid (even in the forum of conscience) from the moment of the sentence; for example, sometimes the contract of minors.

In French law it is called rescindable (rescindable; verbreekbaar), revocable (révocable; herroepelijk), or even null (nul) without addition.

4. Sometimes it is declared invalid by the law itself. Namely, when conditions simply required for validity are lacking, it is invalid from law; but that law must be applied by the sentence of a judge; whence it remains valid before the sentence, but after the sentence it is invalid (even in the forum of conscience), not indeed from the moment of the sentence, but it is judged never to have been posited.

Then in law it is called null from law (nul de droit, nul de plein droit) or simply null (simplement nul; ongeldig).

5. Finally it is altogether invalid (and in the forum of conscience) even before the sentence of a judge. Namely, when conditions essential to the nature, object, or existence of the act, and thus altogether required for its validity, are lacking, so that without them it could not even be conceived. The public good then demands that it be held null even before the intervention of a judge. Then in law it is called null by the fact itself (nul par le fait même), radically null (radicalement nul), nonexistent (non avenu; nietig, onbestaande); for example, a contract concerning an illicit thing (a. 1131 and 1133). But if the matter is doubtful, the sentence of a judge is to be awaited.

455. For a contract there is required (a. 1108): legitimate consent, - a capable subject or fit person, - apt matter, - a licit cause or legitimate reason in the obligation, which nevertheless is to be understood as objective and proximate, or the end of the work by which the contracting party is immediately moved to undertake the obligation. Hence we shall speak of three things: of consent, of subject, of object or matter of contract; when these have been given, a fourth follows, namely the obligation, which is the effect of contract.

A contract is an agreement by which one or more persons oblige themselves toward one or more persons to give, do, or omit something. Moreover, it is distinguished in many ways; for it is:

1st. Unilateral, which is also called gratuitous, or bilateral, which is also called onerous. The former occurs when one or more persons oblige themselves toward one or more persons not obliged, as in the contract of a gratuitous promise. The latter is had when one or more persons oblige themselves toward one or more persons likewise obliged, as in exchanges. Besides, this latter is again subdivided into commutative and aleatory. It is commutative if one contracting party gives a thing in one species and the other gives an equivalent thing of the same or of a different species. It is aleatory if one gives a thing, but the other contracting party gives not a thing but the probable hope of obtaining some thing; and since this hope can fail, it causes a contract of this sort to bear the likeness of chance.

2nd. Solemn or simple, according as it requires special formalities of law, or is subject only to common dispositions.

3rd. Named and unnamed, according as it has a proper name, as, for example, sale, or lacks a proper name, for example, I give that you may give, I do that you may do, etc.

4th. Naked or vested: a contract is called naked when it lacks every support of law and therefore obliges only in conscience; but it is called vested if it has some support of law by which it gives rise to a civil action. Supports of law are writing, stipulation, witnesses, oath, etc.

5th. Formal or express, or virtual or tacit. The former is that which is made by words, writings, or other signs explicitly manifesting consent; but the latter is that whose consent to the agreed thing indeed exists really, but is manifested only implicitly by some saying or deed. Thus a physician exercising his art is judged to promise that he will do that which his profession requires. This contract is also commonly called a quasi-contract.

6th. Absolute or conditioned, according as no condition or some condition is placed upon it. It is also called pure or not pure.

Whatever civil law in the territory establishes concerning contracts, both in general and in species, whether named or unnamed, and concerning payments, the same things are to be observed by canon law in ecclesiastical matter with the same effects, unless they are contrary to divine law or something else is provided by canon law (Can. 1529).

I say. Any contract duly entered into gives rise to an obligation in the forum of conscience, at least on the part of one of the contracting parties; because in a contract some right is granted to one or to each party, and to every right its own obligation corresponds. But this obligation is to be extended not only to that which is expressed by the pact, but to all the consequences which equity, law, or usage demands according to the nature of the agreement. The reason is that contracting parties are judged to act with good faith, and therefore to wish not only that which is expressly included in the stipulation, but also that which is accustomed to arise from it. Hence the intention of the contracting parties must be carefully investigated, if it can be clearly and expressly established. But if it remains obscure and ambiguous, it can be explained both from the matter of the agreement, and from the usage of places, and from the character of the persons.

You Will Resolve. - 1st. A contract rescindable by positive law contains a true obligation, although this is not absolute but conditioned, namely if nullity is not invoked. Moreover, all admit that a human legislator can place a condition of this sort upon certain contracts for the good of peace and for avoiding the danger of fraud.

2nd. Nevertheless, the opinion is probable of those who hold that contracts entered into without the formalities prescribed by law for their validity are valid in conscience; because by natural law the consent alone of the parties suffices for inducing obligation, and human law does not take away a natural obligation between persons otherwise capable, although it denies a civil action. - Cf. Molina, disp. 82. - St. Alphonsus, n. 711.

3rd. The obligation of him who is going to make a judicial cession of goods must be understood according to the custom and positive laws which permit him to retain some goods. But among us these are more or fewer according to the diversity of States and of the condition of domestic life. Cf. Vogler, n. 542. - Gousset, n. 772. - Wells, Every Man, etc., p. 288 and following.

4th. "They sin who rashly contract when no probable hope shines upon them that they will be equal to paying; for it is not licit to make trial of things or to seek gain with the damage of others."

5th. "They sin who, having used various arts, induce creditors to remit part of the debt, lest they lose the whole or lest payment be deferred longer or lest they be entangled in lawsuits; but those who, because of anticipated payment, obtain remission of a part from creditors driven by no necessity but freely consenting, can be excused, since custom thus provides and convenience is worth very much in the common estimation."

6th. "A wife is a participant in another's sin who, by the indulgence of her husband, makes excessive expenses in buying clothes or in another way. Children also sin against justice who, fully conscious that their father is not equal to paying, squander money given to them."

7th. "Whenever someone knows himself unequal to paying, and does not hope that by doing business he can increase his estate, he is held to abandon business, after handing over his goods for payment of debt; for it is licit for no one to conduct business with another's damage. But merchants are often excused, upon whom for the most part some hope shines." - Thus Kenrick, tract. 10, nn. 205 and 206.

8th. They also sin who undertake a journey by railway cars without procuring tickets for the journey for themselves, or without handing over tickets already procured to the official. They receive from the company a utility estimated by a price, which nevertheless they do not pay, and therefore they violate the contract and are held to restitution. We judge the same concerning persons of a determined class, to whom individually under certain conditions the privilege of traveling at a much diminished price is granted by the railway company, but who, contrary to the very condition of the contract, lend their special and privileged tickets to any other persons whatever, so that these may also use the privilege. The railway company granted me a personal privilege, but did not grant me the faculty of communicating that privilege to another. This case of a special privilege granted must altogether be distinguished from the case of a ticket which is valid for a double journey. This second ticket is truly not a special privilege, but, bought by me, passes into my absolute dominion, so that I may use it or give it to another that he may use it, or so that I myself may use one journey, and a returning friend may use it.

The obligation of contracts ceases: 1st, by payment, or by performance of any owed thing, or also by the execution of the promised or otherwise owed object; 2nd, by novation, or substitution of a new debt for the old debt, which is thus extinguished; 3rd, by condonation, or an act by which the creditor remits the debt to his debtor from full liberty. For whoever can yield concerning his own right in all those things which do not pertain to the public good, provided he was not incapable of contracting; 4th, by compensation, or fictive and reciprocal payment, which has place when persons are debtors toward one another in turn; 5th, by confusion, which has place when the obligation of the debtor and the right of the creditor are joined together in the same person, for example, if the creditor becomes heir of his debtor, or the debtor of his creditor, or the same person becomes heir of creditor and debtor at the same time; 6th, by destruction or loss of the thing owed, which sometimes frees the debtor from obligation, as in merely gratuitous contracts, and sometimes in others, where fault of the debtor does not occur. . . . But sometimes it does not free him, for example, if it happened by fault of the debtor, or he was in culpable delay, etc.; 7th, by rescission or rescindability, which has place when a contract consisting of essential conditions is dissoluble because of some defects. That contract is valid until it is rescinded.

I. QUESTION I. What is a contract? ANSWER. The common notion of it is assigned thus. It is the deliberate consent of a twofold will, of the giver and of the receiver, concerning some thing to be done or not done, manifested by some exterior sign. Four things therefore are required in any absolute and perfect contract. The first is the declared consent of that twofold will. The former will is called offering, provoking, and challenging; the latter receiving, provoked, and challenged. The seller's will offers and provokes; the buyer's will is receiving and provoked — although sometimes the buyer offers and provokes. The second is the conjunction of that twofold will. The third is obligation. The fourth is the efficacious action by which each contracting party fulfils his own debt. And so the contract is prior to the obligation, and this precedes the action. The obligation and the action are of two kinds: the one civil, the other natural. The civil needs the proof either of records, or of a bond, or of a written instrument. The natural is content with the testimony of the mind and of conscience. And so in any contract a twofold form can be regarded. The first is essential, which always and everywhere among all nations obtains. The other is adventitious, or accidental, which is constituted in the law of some people or prince. Of the four prerogatives recounted, the first two pertain to the form of the contract: for a contract, strictly taken, is a mutual convention concerning something to be done. This reciprocal concord of wills obligation follows, as a formal effect.

II. The proximate matter of a contract is human acts pertaining to justice. All contracts are reduced to these four: I give that you may give; I give that you may do; I do that you may give; I do that you may do. While contracts of this kind are committed to execution, they put on some determinate species or form. And this is exceedingly to be noted for the forestalling of frauds and usuries.

III. Conrad assigns thirty species of contracts, which partition Fr. Dominic Soto disapproves, who digests the named contracts into three orders, and reduces them to seven species. The first order is of those by which dominion is transferred; the second of those by which the usufruct; the third of those by which the use. In the first order he places liberal donation, exchange, buying, selling, and lending. In the second, emphyteusis. In the third, loan for use, letting, and hiring. From the species of contracts he removes deposit, pledge, and suretyship.

IV. The first contract approved in the holy Scriptures is that of matrimony. Others are contracts approved in general, as is gathered from the Apostle, 1 Thessalonians 4, where it is said: That no man overreach nor circumvent his brother in business. The contract of loan is clearly commended in Luke 6: Lend, hoping for nothing thereby. The contract of letting is declared in the parable of the vineyard let out to murderous and criminal husbandmen, Luke 20; and the contract of hiring in the other parable concerning the labourers hired. The contract of buying is recounted in Genesis 47, where Joseph bought the estates of Egypt, and let out the same to the Egyptians themselves at a fixed agreed rent.

V. QUESTION II. How are contracts perfected? ANSWER. In any contract a twofold perfection is distinguished: one substantial, the other adventitious. The former is had when all those things are added which are necessary to the species of the contract. Thus a sale is perfect as regards its species as soon as it has been agreed between buyer and seller concerning the price. But by the delivery of the ware it is perfected accidentally and as regards the integrity of the contract. In four ways contracts are wont to be perfected. By consent declared by an exterior sign. By words, or a determinate form of words. By writing, when it is necessarily required. By delivery of the thing, without which some contracts are not completed. By consent are perfected those contracts which signify a mutual convention of the contracting parties, as are buying, selling, letting, hiring: writing, or the instrument which the contracting parties draw up after the mutual convention, is required not for the nature but for the proof of the contract. Other contracts demand a determinate form of words, as in a stipulation, in which, one asking: Do you promise me? the other replies: I promise. Will you give me? I will give. Which form of words, although it once obtained among the Romans, has now wholly grown obsolete, and it is enough that the consent of the contracting parties be proved by any words whatsoever. By writing are perfected emphyteusis and other contracts which, before they be written by a notary, have no force, custom or law so obtaining. The contracting parties can also suspend their consent until the writing be drawn up. By delivery of the thing are perfected loan, donation, loan for use, deposit, exchange, pledge. These before delivery are not reckoned perfect, but bare agreements.

VI. If contracting parties celebrate contracts with outward words without an inward mind of contracting, the contract is null: although in the exterior forum the deceiver is deservedly compelled to fulfil the contract, because consent is presumed. Nay, in the interior forum also the deceiver is bound to give consent. In few words I will touch upon the nature of obligation.

VII. Obligation is the bond by which a man binds himself to furnish something. Among these, one is friendly, resting upon the honourableness of the thing, by which a man is grateful to his benefactor; the debt of this is moral, not a precept of justice. Another obligation is founded in a commanding law, and is called a legal debt, which can arise either from charity, or from religion, or from justice, or from obedience. Obligation proceeding from justice alone brings in the debt of restitution. Obligation flowing from justice is either merely natural, which binds in the forum of conscience, but in the exterior forum gives no action; or merely civil, when according to what is alleged and proved a man is convicted a debtor who in truth is not, and is compelled to pay; or it is at once natural and civil, which binds in each forum.

TO CONTRACT signifies to draw many into one; hence its first effect is obligation, which is a bond of law by which one is bound to another to do or not to do something, as it is said §. 1. Institut. de oblig. et l. 1. ff. de pactis. But for contracting this obligation there is required first that the persons be capable, second that an intention of obligating oneself intervene; then that they be compelled neither by fear nor by fraud. For since a contract is a free act, whatever destroys voluntariness is against it. And nothing is so contrary to this as error or fraud, l. per errorem, ff. de iurisd. omnium Iud. And these things, we shall prove, are required for absolute contracts; but there are also others conditional, modified in various ways by Law, about which I shall also inquire; but first something must be said of the Quiddity and Division of Contract.

CONTRACT is properly defined by Ulpian in Leg. Labeo, ff. de verborum signific., where he says: It is an obligation from one side and the other: the Doctors supply: Arising from the will and agreement of the parties. That is, a contract is a pact from which arises an obligation on both sides. Thus St. Bonaventure takes the definition of contract in 4. dist. 27 passim, and dist. 29 quaest. 2, in fundamentis, in corpore, et ad argumenta.

THIS definition, or description, is handed down by its effect, that is, by the mutual obligation which results from the pact of the parties, as St. Bonaventure observes, in the places cited; wherefore it is rather a causal definition than a formal one, as Bonaventure notes, in dist. 3. de contract. quaest. 1. puncto 1.

Yet it can be said, with St. Bonaventure, 4. dist. 27. quaest. 2., that the obligation, or bond, of contract is taken in the definition according to the cause in intention, insofar namely as the will, intending the expressly drawn obligation, from both sides is the contract; and then the definition will be essential through the formal cause, which Suarez also observes, Lib. primo de voto, cap. 13. num. 11., and Fagundez, Lib. 1. cap. 2.

From these you have that a pact extends more widely than strict contract. A pact is defined: It is the agreement and consent of two or more into the same thing. For in a pact an obligation can result from one side only, as in donations, where only the donor is obligated to give, not the donee to accept. Then, by force of a bare pact, a promise arises in the order of truth, not of justice; but in a contract an obligation of commutative justice arises, as St. Bonaventure teaches, 4. dist. 29. loco citato.

HENCE also you have by what name certain conventions are called in which results the obligation of one party or parties from some office, for example of a Tutor, Curator, or steward; these, however, are called quasi-contracts. The definition is given by Fagundez, de contract. Lib. 1. cap. 2.: A quasi-contract is an obligation by which someone is bound to another not from any contract or wrongdoing, but from some office or act lawful and honest, even though no express will of either party intervenes.

THEREFORE IT IS MOST CERTAIN that in contracts the consent of both parties is necessary, as the Holy Doctor often repeats, in 4. dist. 27. 28. et 29., Molina, Tom. 2. disp. 254., Lessius, Tom. 1. Lib. 2. cap. 17. dub. 2., Azor., part. 3. lib. 6. cap. 2., Bonacina, de contract. in genere, disp. 3. quaest. 1. puncto 2., Sanchez, Lib. primo de matrim. disp. 8. et lib. 4. decal. cap. 1., Suarez, tomo 2. de relig. lib. 2. de iuram. cap. 7., Fagundez, Lib. 1. cap. 2. num. 2., Tannerus, disp. 4. quaest. 7. dub. 1.

THERE ARE MANY kinds of contracts, as St. Bonaventure teaches, in the places cited, and in speculo animae, cap. 1. 2. et 4.

THEY ARE DIVIDED into Nominated and Unnominated. A nominated contract is one which has its proper name, as Lease, Hiring, Sale, Deposit, and Settlement.

UNNOMINATED contracts are those which lack a proper name, and they are reduced almost to these four modes: Do, ut des, e.g. Give me a horse, that you give me wheat. Do, ut facias: I give you wheat, that you till my field. Facio, ut facias, e.g. I till your field, that you build me a house. Facio, ut des. I till your field, that you give me wheat. These are treated in L. ge. Naturalis, ff. de praescriptis verbis. But these contracts are regulated according to the Nominated ones.

NOMINATED contracts are divided into contracts of good faith and of strict law.

CONTRACTS OF GOOD FAITH are those in which Judges decide not so much in the rigor of law and pact as from equity and good.

CONTRACTS OF STRICT LAW are those in which judges proceed by the rigor of law.

CONTRACTS OF GOOD FAITH are Purchase, Sale, Lease, Hiring, Procuratorship, or Mandate for the management of affairs, Deposit, Loan for use, Insurance, Partnership, Guardianship, Pledging, the right of dividing an estate among heirs, division of common property among several. Likewise when a thing is given to someone that he may return it, or its price. But the other contracts, as Emphyteusis, quaest. 5. num. 32., and Exchanges, are of strict law, as Rebellius teaches, 2. part. lib. 1. quaest. 2., Molina, Tom. 2. de iustitia, disput. 259., Valascus, de emphyt. quaest. 5., Fagundez, cap. 1. num. 8., who, against others, approve this division not only in the external forum but also in the forum of the soul.

BUT WHETHER betrothals ought to be reckoned among contracts of strict law; Sanchez, Lib. 1. de matrim. disp. 64. num. 3., supposes, as certain, that they are of good faith, from which it can be inferred that betrothals to which fraud gave occasion are invalid, because contracts of good faith to which fraud gave occasion are invalid; and this seems to be the mind of St. Bonaventure, in 4. dist. 27. dub. 2. litterali.

NOMINATED contracts are divided into Onerous and Lucrative. Lucrative are those in which something is remitted, promised, or given to someone without any burden or compensation of justice, but merely gratuitously, as donation, acceptilation, loan for use, as to the use of the thing; for although the borrower is bound to restore the thing, yet the use is liberal. Onerous contracts are those on which a burden falls on both sides, as in purchase. To this division are reduced contracts Respective and non-Respective. Respective are those in which obligation results from both sides, and they are proper contracts. Non-respective, in which obligation results from one side only, are less proper, as stipulation and promise.

IF contract be taken for pact, it is divided into Bare and Clothed. A bare pact is one in which only the agreement of the parties intervenes and nothing further has been done, and no other foundation is present. Clothed is that which is strengthened by solemnities, or is invested with some circumstance in which it is confirmed by civil law.

IT IS CLOTHED, moreover, in six ways. First in the thing, if it be fulfilled at least on one side. Secondly by words, if stipulation is added. Thirdly by writing, as if by a letter you acknowledged that satisfaction had already been made to you, even if it had not been made, which is called Acceptilation. Fourthly by the specific name of contract; by which reason all contracts which are perfected by consent, indeed all nominated contracts, are clothed, if they are perfect in their kind. Fifthly by oath. Sixthly by coherence with some clothed contract, as if I sell you a house for a thousand gold pieces with the pact that I may still dwell in it, and give you this garment for my dwelling; this accessory pact of itself is a bare pact, yet because it coheres with the sale it is also clothed, because the accessory follows the nature of the principal.

IT IS DIVIDED also into a Guarentigium contract and a non-Guarentigium one.

A GUARENTIGIUM is one that has execution ready at hand, because of the oath placed in it, or a hypothec, or a public instrument in which the right of executing it is conceded without awaiting the judge's sentence.

A NON-GUARENTIGIUS is one that lacks these securities. So Molina, tract. 1. disp. 71., Lessius, Lib. 2. c. 28. dub. 1., Fagundez, cap. 1. in fine.