The Force of Civil Law in the Matter of Justice

355. Declarations. 1. Political authority, to preserve and promote the common good, establishes diverse laws, among which those laws chiefly hold place which are referred to the private rights of citizens, are called civil laws or civil right, and are contained in the civil code. For especially in this matter of external goods, the civil power ought to declare, perfect, and determine more accurately the obscure, defective, and indeterminate law of nature. Concerning these laws the question is asked: what value do they have, and what obligation do they induce?

Formerly Roman law was in force almost everywhere, whence it is called common law; but today almost every republic has its own civil code. Now, modern theologians must attend each to the code of his own country in the same way as earlier theologians looked to Roman law: for recent codes are of themselves of the same authority as ancient Roman law.²

2. Civil laws are of a twofold kind: some constitute and determine rights among citizens, of which sort is the law which establishes that part of a treasure found in another's land pertains to the owner of the land; others are referred to juridical acts and, besides those things which are essentially required by natural law (as that those contracting ought to be in control of themselves), prescribe several formalities or solemnities which must be observed in placing juridical acts and especially in celebrating contracts, so that they may acquire full value.

a. Juridical acts are human acts by which some right is acquired or extinguished. To these are especially referred contracts, which must be made in a certain form prescribed by civil law, so that they may have full value.

b. Of these formalities some are accidental, which, if absent, do not affect the act itself, for example, that a document ought to be sealed; others are substantial, which, if absent, affect the act itself.

3. Civil laws can affect juridical acts in five ways:³

a. The law neither prohibits nor invalidates the act, but only does not assist it, or in the external forum denies every action. Thus the law does not assist contracts of gaming, and therefore denies every action for demanding those things which are owed from gaming.

b. The law prohibits the act and makes it illicit, although it does not invalidate it. Thus brokers are prohibited from doing business for themselves in that matter for which they have been admitted.

c. The law makes the act rescindable, in that it grants to the judge the power of invalidating. Thus a contract entered into by a minor without the father's consent can be invalidated by the judge; but if the judge does not invalidate it, the act remains valid.

d. The law invalidates the act by the fact itself, but only civilly, so that the judge, if the act is brought to his forum, must hold it invalid; outside the civil forum it can have natural value.

e. The law invalidates the act by the fact itself, civilly and naturally, so that in the external forum of judgment and in the internal forum of conscience it is destitute of value.

¹ Van Gestel, De iustitia et lege civili^2 (Groningae: Wolters, 1896), c. 2. Lehmkuhl, Das burgerliche Gesetzbuch^2 (Freiburg: Herder, 1900), p. 29 ff. A. Vermeersch, Quaestiones de iustitia^2 (Brugis: Beyaert, 1904), n. 324-337.

² The precepts of justice in the following pages are chiefly to be set forth according to the law of nature; nevertheless, in the notes there are added, marked by the sign C. A. = Austrian code, C. G. = German code, those texts of civil law to which the confessor ought to attend.

³ Laymann, Theologia moralis, l. 1, c. 16, n. 2 ss.; Van Gestel, l. c., n. 64.

356. On the value of civil law. Therefore it is asked what value civil laws have, whether establishing rights or invalidating juridical acts. And since juridical acts are often invalidated because of the defect of some formality prescribed by law, the question is asked specifically what value acts or contracts have which lack a formality prescribed by law.

Assertions. 1. Civil laws establishing rights or transferring ownership ordinarily oblige in conscience, from commutative justice, before any sentence of the judge. For a law established by competent authority for the common good obliges in conscience. But rights which are referred to goods of fortune constitute the object of commutative justice. Therefore preceptive laws which establish citizens' rights concerning goods of fortune oblige from commutative justice.¹

The legislator, both ecclesiastical and civil, by the consent of all can, if he wishes, establish invalidating laws.² That the ecclesiastical legislator requires solemnities prescribed by himself for the value of an act is certain; concerning the civil legislator in particular cases his intention must be sought, whether and how far he wishes to invalidate acts, specifically whether the prescribed formalities are required for the value of the act.

2. Civil laws invalidating juridical acts because of the defect of an essential condition have value in conscience also before the sentence of the judge.

Therefore contracts entered into with an insane person, a drunken person, under a base condition, concerning an impossible thing, etc., which are invalidated by law,³ are plainly invalid without the intervention of the judge. But if civil law declares a juridical act invalid by natural law, for example, because of substantial error, only rescindable, it must be said that supreme authority, on account of the common good, gives to acts of this kind a value which they do not have of themselves, until they are rescinded by him who had erred in contracting.⁴

3. Civil laws invalidating juridical acts because of defect of the prescribed form probably do not invalidate fully before the sentence of the judge, but only civilly, unless the nature of the thing or contract requires otherwise. For since these laws restrict the liberty of citizens in transferring ownership and therefore are odious, they admit strict interpretation as far as can be done. Besides, contracts valid by natural law are not to be held invalid unless their nullity is certain. Finally, modern legislators, denying the law of nature, acknowledge only positive law; therefore by their laws, where it depends on them, they intend to invalidate only this, not also that.

a. Therefore, even if certain contracts are said in the civil code to be simply invalid or null, nevertheless by force of civil law they are constituted null only civilly. For from the reasons brought forward above, the opinion of those thinking that contracts which by law are called null are constituted invalid only in the external forum is certainly probable and therefore safe in practice. Therefore if, for example, a sick man near death verbally gives a legacy to someone, the donation, as lacking legal form, is without form. Therefore the heir is not bound to pay the legacy and can juridically reclaim what has been paid, because he can use the right which is granted to him by law; but neither is the legatee bound to return it until the heir has obtained invalidation of the donation through the judge.

b. The nature of the thing requires that the contract be invalid immediately before the sentence of the judge when the end on account of which the contract is declared invalid cannot otherwise be obtained. Of this kind are contracts entered into with parents concerning support not to be given, and contracts by which the right of a son to the legitimate portion is injured.

4. After the sentence of the judge declaring the juridical act invalid, the acts are to be held fully invalid also in conscience.

For the just sentence of a legitimate judge has value in conscience. Besides, public order and security of rights demand that a judicial sentence put an end to doubts and disputes also in the internal forum of conscience.⁵

Note. Nevertheless onerous contracts which are invalidated by civil law ordinarily lack natural value also in conscience. For contracts do not have force beyond the consent of those contracting; but in onerous contracts those contracting are judged not to have wished to consent to the contract except according to the norm of civil law, because otherwise they are not protected by civil right. Wherefore onerous contracts which by law are null must for the most part be held naturally null also.

¹ Cf. St. Thomas, II-II, q. 58, a. 6.

² The S. Poenitent., by response of 21 Jan. 1873, manifestly acknowledges the power of political authority of invalidating juridical acts even in the forum of conscience. Cf. Acta s. sedis, VII, p. 211.

³ C. G., Section 104, 138, 306; C. A., Section 865.

⁴ Cf. C. G., Section 119, 123.

⁵ Lehmkuhl, Das burgerliche Gesetzbuch, p. 37.