The Effects of a Contract Confirmed by Oath

It suffices, but it is also useful, to apply to a contract the things which elsewhere (n. 689) we said about an oath added to an act taken more generally.

I. An oath added to an invalid contract does not render it valid;¹ nor, when added to a rescindable contract, does it render that contract non-rescindable; since an oath does not change the nature of the contract, according as that nature exists of itself or from law. Refer here these words of can. 1318, § 2: "But if an oath is added to an act directly tending to the damage of others or to the prejudice of the public good or of eternal salvation, the act obtains no firmness from this."

II. An oath added to an invalid contract does not induce an obligation, because an oath added to an act follows the nature and conditions of the act to which it is added (can. 1318, § 1), or because the accessory follows the principal (St. Alphonsus, III, 180).²

III. An oath added to a valid contract adds the obligation of religion to the obligation of the contract; nevertheless it begins and ceases to oblige with the contract to which it is added. The former is clear both from Sacred Scripture³ and from can. 1317, § 1, as well as from the things said about an oath in the treatise on the second precept (n. 689). The latter is drawn out from the fact that, as was said, an oath added to an act follows the nature and conditions of the act to which it is added.

¹ With respect to Roman Law, many judge that a contract invalid per se by positive law is convalidated by an added oath. Others extended the same to Canon Law (cf. St. Alphonsus, III, 177); but these things no longer seem to have force in Canon Law (cf. book III, chapter II, on the oath, coll. 6, 6°).

² Nevertheless it is not repugnant that, by an oath added to an invalid contract, an obligation be induced; for strictly speaking someone can oblige himself independently of the value of the act to which the oath is added. But these things are nearly hypothetical.

³ Matt. 5:33.

617. We presuppose, from the Treatise on Laws, that there is present in the civil power the faculty of making laws concerning merely civil contracts, and also of defining conditions for their validity. Now human law can touch contracts in seven ways:

¹ Laymann, lib. I, c. 16; Carriere, n. 88-172; Bouquillon, Theol. Fundament., n. 237-240; Van Gestel, De Justitia et Lege civili, Groningen, 1896, n. 63-87; Noldin, n. 346-347.

1. Sometimes it neither prohibits nor approves them, but only attributes no force to them in the external forum; thus, in many regions, contracts from gambling are not acknowledged by law, insofar as rights arising from them cannot be vindicated before judges; then there is no difficulty: the value of the act must be defined from natural law.

2. At other times, it prohibits certain acts, but acknowledges their validity if they in fact are done; thus often brokers (courtiers) are forbidden to conduct business for themselves in those things in which they exercise their function; then likewise there is no difficulty, since the act, although illicit, is held as valid by law.

618. 3. Sometimes it is decreed that contracts are not null of themselves, but only rescindable; thus, e.g., as regards many acts of minors; then contracts are to be held as valid as long as they have not been invalidated by a judge.

4. But sometimes contracts are declared null by the law itself, yet in such a way that from the context or purpose of the law it can be understood that the act is indeed invalid in the external forum, but remains naturally valid or valid in the forum of conscience; in which case, before the sentence of the judge, he whom the contract favors can hold it as valid and use it, since it retains its force in the forum of conscience; moreover those whose interest is concerned can, with a safe conscience, use their own right and demand the nullity of the contract; and after the sentence of the judge, each party must acquiesce in this: for the public good demands that legitimate sentences of tribunals have force in conscience. - Indeed, even before the intervention of the judge, if the contract is evidently null from civil law, and one party seeks the rescission of the contract, charity demands that the other party not stand in the way of this rescission, lest useless expenses of litigation be incurred.

619. 5. Finally, law can invalidate a contract not only civilly, but also naturally, or in the forum of conscience, even before the declaratory sentence of the judge, as often as the public good demands this. - Thus commonly.

Most admit that the civil power can make such laws: for just as the Church, in religious matters, can invalidate certain contracts even before the sentence of the judge, so likewise political power, in temporal matters, can invalidate contracts in the same way, even in the forum of conscience, as often as the public good demands this: for each power proceeds from God, and is supreme in its own genus, so that it can make laws which, before the sentence of the judge, oblige in conscience.¹

¹ This can be confirmed by a recent example; the Italian law of May 1, 1866 had established that creditors were bound to accept paper money (monnaie en papier) in payment, notwithstanding any contrary pact; now the Sacred Penitentiary, having been asked whether a law of this kind had force in the forum of conscience, on January 21, 1873, responded: "regularly in the affirmative, unless particular circumstances stand in the way." (Acta S. Sedis, t. VII, p. 211.)

But the whole difficulty is in defining which civil laws oblige thus. When the legislator has clearly declared this, there is no difficulty; but today legislators do not explicitly speak of the moral obligation of laws; hence the question must be solved from the purpose of the law, common interpretation, or custom; namely, if the public good demands that the law be held as invalidating even before the intervention of the judge, immediately it must be held as invalid in conscience; such would be, e.g., an agreement by which children would make a pact with parents about not giving support, or a contract concerning the furnishing of an illicit thing. - Otherwise, a contract can be held as naturally valid before the sentence of the judge; for an act valid by natural law ought not to be held as null, unless it is morally certain concerning its nullity.

6. Today by some jurists not only null and rescindable contracts are acknowledged, but also non-existent ones,¹ namely those which lack one of the elements absolutely necessary for validity, e.g., free consent; these are null, even in the forum of conscience, before the sentence of the judge. - Yet if the matter is doubtful, the declaratory sentence of the judge can be awaited.

¹ Planiol, I, n. 345.

7. Contracts entered into in fraud of the law are affected by that nullity which the violated law decrees, by reason of the public good.

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

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

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

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

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

475. An oath added to a contract does not change the obligation of the contract itself, but only extrinsically adds an obligation of religion. Hence:

1. If the contract is valid and firm, a promissory oath does not extend its obligation, but adds another obligation of religion, so that someone is now held to the same thing by a twofold title, of justice and at the same time of religion. Whence when the obligation of the contract ceases, the obligation of the oath also ceases, because the accessory follows the principal; unless the one swearing intended to oblige himself further.

2. If the contract is invalid by reason of matter illicit from natural or divine law, or from human law but directly on account of the common good, it does not become valid from the oath; nor is the promissory oath itself valid, because the accessory follows the principal, and because the one swearing cannot oblige himself to what is illicit, or harmful to the common good, as contrary to good morals. Thus sworn pacts concerning usury, concerning prostitution of the body, or a sworn matrimonial contract entered into with a diriment impediment are of no strength.

3. If a contract from human law is invalid or rescindable, but principally in favor of the private contracting party, the contract does not thereby become firm, but the promissory oath is valid and induces an obligation of religion. Whence a minor or wife who by oath promised not to rescind an otherwise just contract is held from religion not to rescind; if nevertheless he or she petitions rescission, it is valid, but he or she has sinned against religion, unless a dispensation from the oath had first been obtained.

4. If a contract is invalid from substantial error, neither does the contract itself become valid from the oath, nor is the promissory oath itself valid, because the accessory follows the principal and because the one swearing does not intend to swear concerning a thing about which he does not consent.

5. If a contract has been confirmed by an oath extorted from grave fear, the contract and oath are valid, because fear does not take away the voluntary, nor the human act. Hence if someone from fear of death swears that he will give a robber a sum of money, he is bound to give it; nevertheless he can petition a dispensation of the oath and rescission of the contract, or the punishment of the robber.

I say. Contracts void by whatever law are not made firm by oath; but valid and licit contracts are made firm. - The reason for the first is that an oath follows the nature of the act; and the reason for the second, because then there comes to it a bond from the virtue of religion.

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

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

The question treats: Whether an Oath, beyond its force of obliging to the performance of the thing sworn, also has the force of confirming those contracts to which it is added.

Now a contract can be understood to be ratified by an oath in two ways.

First, when the contract, apart from the oath, was valid of itself and by law; but it could be revoked, and it was lawful to appeal against it in court — and by virtue of the oath it is made irrevocable, such as contracts entered into by minors, by the Judge's decree and with the consent of a Curator.

Second, when the contract was invalid by the law itself; but by virtue of the added oath it becomes valid, or at least has all the effects as if it were valid, such as contracts entered into by a minor without the consent of a Curator, and this is established ex leg. si Curatorem, cod. de integra. restit.

Note also that an oath by its nature does not have the force of confirming contracts, for of itself it was instituted only to confirm an asserted truth. Hence our question is: Whether it obtains this force from any positive law, CANONICAL, or CIVIL.

The first opinion, therefore, is that no force in any law is inherent in an oath. So Iason Auth. sacram puber. num. 5. and 36. and 37. Igneus in repet. of the same Auth. num. 15. Portius, §. Extraneis, num. 11. Instit. de haered. qualitate.

Yet the true teaching is that an oath sometimes has the force of confirming the contracts to which it is added, which are void by civil or canon law. Thus the alienation of a dowry land; the renunciation of a future succession, and contracts of minors made without the authority of a Curator and the decree of a judge, when they concern immovable goods, are void — and yet, if they are buttressed by an oath, they are valid per cap. Quamvis pactum, in 6. and cap. 2. de iureiur. and cap. cum contingat, same title, and Auth. Sacramenta puberum, Cod. si adversus, vendit. That this teaching is most common, Sanchez reports Tom. 1. Decal. lib. 3. c. 12. recensens n. 11. of sixty Doctors, to whom add Fagundez in secundum praeceptum, lib. 2. c. 17. and others cited by him.

AZORIUS, however, ERRS, Tom. 2. lib. 11. c. 7. quaestio 1., saying that an oath confirms contracts void indeed by civil law, but not by canon law. For the contrary holds, because a donation between spouses is void by canon law, cap. finali de donat. inter virum, et uxorem; and yet it is confirmed by an oath, as Sanchez teaches with the most frequent opinion lib. 6. de matrimonio, disput. 11. — and Azorius himself admits the same.

THEY OBJECT: the common axiom of the jurists: An oath is to be regulated according to the nature of the act to which it is attached leg. finali, Cod. de non numerata pecunia. Hence many Doctors teach that an oath does not increase the obligation of the thing to which it is attached, but only adds to the act the bond of Religion: Therefore an oath does not confirm contracts, but leaves them in their own state.

TO MANY of these Fagundez replies. But I say, from D. Bonavent. in 4. dist. 28. dubiis lit., that the axiom is true with respect to things that are of the law of nature, Divine, or of Nations — such things, namely, invalid ones, are not changed by a new oath, but are left in their pristine state; but it does not hold in contracts of merely human law.

The RULE, however, most firm for knowing when a contract is ratified by an oath, is from D. Bonavent. loco cit. and Fagundez num. 114.: Whenever an oath attached to contracts can be kept without sin, and no turpitude is found in the one in whose favor it is given, and it contains not only a promise of doing the promised thing, but also such a promise as is at least equivalent to a promise of not revoking the contract, then the oath confirms that contract. This rule Sanchez hands down Tom. 1. lib. 3. Decal. cap. 12. num. 42.

AS TO the first condition, which is required that the oath can be kept without sin; some reduce another to it, namely that the oath not be made to the prejudice of another — but that is the same as not being able to be kept without sin cap. cum contingat de iureiurando, and cap. Quamvis pactum de pactis, in 6.

ON the second condition, that there be no turpitude on the part of the one receiving the oath, that is, on the part of him in whose favor it is given, they ask what this turpitude must be like.

IT IS ANSWERED, with Sanchez Tom. 1. lib. 3. cap. 12. num. 53. and Fagundez num. 17., that turpitude occurs not only when the receiver unjustly accepts and is bound; but also when he sins in accepting the thing promised to him by oath, even though he is not bound to restore it, nor does he sin in keeping it.

From the first condition it follows that contracts are not ratified by an oath against the law of Nature, Divine, or of Nations; indeed, against civil and canonical law, which is immediately ordered to the common good, as Fagundez proves at length. The reason is, because all these contracts are mortal or venial sins, according to the gravity of the matter.

On the contrary, however, if such a law is enacted for the favor of a private person, it does not oblige under fault; therefore an oath confirms such contracts against those laws which favor a private person.

YOU WILL ASK: whether, in doubt, you are bound if you have sworn.

I SAY, that in these cases the favor stands for liberty, as I said de voto, disput. 1. But if you have promised something, restrict it; as if you swore not to play, restrict it to illicit games, cap. 1. de Iureiur. in 6. Sanchez lib. 3. cap. 17. and 18. Navar. cap. 12. num. 11. Rodriquez p. p. quaest. 188. num. 10. Reginaldus lib. 18. num. 34. Bassaeus V. Iuramentum. 4. num. 6.

A certain priest proposed the following cases to be solved:

I. Adalbert secretly introduced an enormous quantity of merchandise without paying the customs duties owed upon it, with the help of a certain Thomas, to whom he had already given fifty pounds for his labor and had promised to add fifty when the work was completed. Nevertheless, he did not stand by his promises, having heard that such a contract, inasmuch as it concerned unlawful matter, had been invalid from the beginning.

II. The same man had seduced a girl, seeking her consent to sin as a condition for contracting marriage afterward. But when he again did not stand by his promises, he was summoned by her to court and was punished with a fine of £1000 for breach of promise, which, lest he be compelled to pay it, he went away into another country. Hence it is asked:

1. What is the obligation of municipal law in England?

2. When our municipal law invalidates a contract, is the contract invalid in conscience?

3. Does a base contract bind, and in what manner?

4. Let the proposed cases be resolved.

1. What is the obligation of municipal law in England? Where English law applies or determines natural law, it binds the conscience under pain of sin. A merely positive law in England is probably penal and binds the conscience only to submit to the penalty if it is imposed by competent authority.¹

1 Manual of Moral Theology, vol. i, p. 125.

2. When our municipal law voids a contract, is the contract void in conscience?

Not at once and immediately; if it is valid by the law of nature, it remains valid unless some one moves to take advantage of the voiding law and set the contract aside.²

2 The same work, pp. 128, 478.

3. Does an immoral contract bind, and in what manner?

A contract to do something which is morally wrong is null and void in itself before the bad action agreed upon is done, as there can not be an obligation to do wrong. After the bad action has been done by one party, many theologians hold that the other party to the contract is bound to fulfil his promise, not by reason of the original contract, but because of a new contract, facio ut des, concluded in the very doing of the action. Others deny this, and hold that an immoral contract is and remains invalid.³

3 The same work, p. 488.

4. The cases. The contract which Albert made with Thomas was against positive law, but not necessarily immoral. It was therefore a valid contract and obligatory in conscience. Albert is therefore bound to pay the second fifty pounds to Thomas.

This same Albert seduced a woman by making her a promise of marriage. As he did not fulfil his promise the woman brought an action against him in court and obtained £1000 damages. Albert fled the country to avoid payment. Apart from the question whether the promise of marriage was valid or not, Albert did the woman an injury, for which he is bound to make compensation as far as possible. The court condemns him to pay £1000 damages for the injury, and he is bound in consequence to submit and to pay the sum. His flying from the country will not excuse him.