Trading and lawsuits on Sunday

Public trading is also forbidden on Sundays, as well as judicial proceedings in the exercise of contentious jurisdiction, and the solemn and public taking of oaths (Can. 1248).

English municipal law goes farther than the law of the Church in its provisions for the due observance of the Lord’s Day. Thus not only is Sunday a dies non for the sitting of courts or the meeting of public bodies, but contracts such as are within the ordinary calling of tradesmen, workmen, labourers, or other persons of the same sort, made and completed on Sunday, are void, and abstention from work and even from play is required by a series of statutes.¹ Although these provisions of the civil authority do not impose an obligation in conscience under pain of sin, yet indirectly they have caused the Sunday to be observed among us with greater strictness than is absolutely required by ecclesiastical law.

¹ Encyclopedia of Laws, s.v. Sunday.

The Prohibition against Trading.—(a) Meaning.—Trading as here understood is purely gainful merchandizing (i.e., buying an article at a lower price in order to sell it unchanged at a higher price) or industrial merchandizing (i.e., buying an article in order to sell it at a profit after it has been changed by hired labor). Hence, there is no canonical trading in commerce which lacks one of the conditions mentioned, for example, if one buys goods for one’s household or community and, on discovering that a superfluity has been purchased, sells at a profit what is left over (see 2134, 2135). Trading includes not only a business conducted personally or for personal profit, but also one conducted through agents or for the benefit of others, such as the poor or pious causes.

(b) Obligation.—The violation of this law is grave in itself, but a serious sin demands on the part of the subject that there be real trading (i.e., a number of acts morally united and proceeding from a purpose to continue in lucrative merchandizing), and on the side of the object that there be a large amount involved. Hence, it would be venial to engage in lucrative trading with a large profit once, and with a small profit twice or thrice.

(c) Excuses.—Necessity (e.g., if a cleric needs the money to live or to maintain his state, or if a business has fallen to him by inheritance and cannot be given up without loss) justifies trading, if there is permission.

Are other works also prohibited? - This precept, insofar as it is negative, prohibits not only all servile works, but also civil works, namely market-trade and public negotiation of merchandise, and three forensic things: namely suit, judgment unto death, and oath. Thus the common opinion of theologians from C. 1, 3, and ult., de Feriis. And St. Pius V, C. Cum primum, 6 Kal. Apr. 1566, § 7, commanded that all on feast days "abstain from every illicit and servile work, that markets not be held, and that profane negotiations and the noise of judgments be quieted." L. 284.

By market-trade is understood the public exercise of commerce, or a market, with noise, as are annual or weekly fairs, etc. Public sales of merchandise are prohibited by reason of scandal; "hence, as usage bears, goods can be sold behind closed doors," Scav., ed. 12, Mediol. 1874, l. 2, nn. 95, 239. But in this matter custom must be observed, both universal and also particular to places; for this can abrogate a human law in whole or in part, and here has already abrogated the law in great part. Hence, on account of generally received custom, fairs established for a certain day are excepted if they fall on a feast day. Benedict XIV so declared, C. Ab eo tempore, 5 Nov. 1745.

Likewise, from received custom, food, drink, shoes, candles, cloth for making clothes, and other things of this sort are licitly sold and bought in public shops. Yet merchants ought to close their shops, so that they may show that they distinguish Sunday from other days; but here also the custom of places and necessity, varied for various places, claims very much for itself. Public auctions are also tolerated in some places after the divine offices have been performed, because on other days there would be fewer attending, etc. Likewise it is tolerated that merchants of things of small moment carry, show, and sell goods from one place to another.

Houses, horses, oxen, and other merchandise are licitly sold and bought, whether present or absent, whether in small or great quantity, even if a notable time is spent in this, provided these things are done between private persons; both because the usage of the God-fearing so bears, and because the Church prohibited only sales in public shops, by reason of scandal. From the custom of the wise, all contracts are licit if they are made without instruments and the authority of a judge. Indeed St. Alphonsus notes that custom bears that they may be celebrated not only privately, but even through instruments, provided they do not require judicial noise, for example, testaments, instruments of betrothals, sales, etc.; "although," the holy Doctor adds, "notaries in some places are accustomed for this to ask general license from the Ordinary, which for the rest is commonly granted." L. 286, 289; Benedict XIV, de Syn., l. 7, c. 3, nn. 2, 3.

By suit is understood a civil sentence or the hearing of civil causes in judgment. By judgment unto death is understood the citation of the accused to judgment, his examination, condemnation, and execution of the sentence. Now then, judicial processes are prohibited on feast days, and are void by the law itself from C. ult., de Feriis. Except, however, if a cause is present both of necessity and also of piety, as is clear from the same Cap. ult., de Feriis, and from the common authority of theologians.

Therefore it is licit on a feast day to excommunicate, dispense, inform a judge privately, consult an advocate, prepare counsels, etc., because these things are done outside judgment and consequently do not require judicial noise. It is said to be judicial noise where the cause is contentious and litigious, and where questions and disputes are handled; and indeed judicial noise consists in citation, from which the cause chiefly seems to begin, in the formation of process and the cognition of the cause, and in the pronouncement of sentence. Therefore acts of voluntary jurisdiction are not prohibited on a feast day, nor extrajudicial acts. Suarez, l. 2, c. 38; Cajetan, 2. 2, q. 122, a. 4; Schmalz., l. 2, t. 9, nn. 52, 53; Struggl 6; Bonacina, t. 2, d. 5, q. un., p. 2, n. 25; L. 284, 287, 294, 295. "Necessity ceasing, it is not licit to wage war on feast days." S. Th. 2. 2, q. 40, a. 4. For war is against the rest and sanctification of the feast day, which is ordered to being free for divine things. But if necessity is present, as other works become licit from necessity, so also to wage war. S. Th. 2. 2, q. 122, a. 4; C. Treguas, de Tregua et pace.

By oath finally is understood an oath before a judge, or a judicial oath. L. 284; S. Th. 2. 2, q. 89, a. 10.

Note: In these forensic and judicial works, the quantity of matter sufficient for grave sin is not taken from the quantity of time, but from the quality of the work. L. 307.

1040. (B) Forensic works are also prohibited: (a) judicial acts of the forum, whether civil or ecclesiastical, which are done with noise, for example, to cite parties, examine witnesses, exact a judicial oath, pronounce sentence, etc.; but acts which are done without noise are licit, for example, to consult an advocate, inform a judge, dispense, absolve, etc.; - (b) markets, or commercial acts, solemn contracts; thus public fairs, unless they are excused by custom; public sales by auction, unless they likewise are tolerated by custom after divine offices have been completed; solemn contracts, which are completed by notaries; but not private contracts which are entered privately.

b) The Church further forbids business and court proceedings (opera forensia), such as public sales, the hearing of witnesses, etc., in so far as they disturb the public peace and are thus opposed to the sanctification of the Lord’s Day. Annual fairs that are customarily held upon a holyday of obligation had better be transferred to another day. Theatrical performances, baseball games, and similar entertainments may be permitted on Sundays and holydays of obligation for the reason that, as St. Alphonsus says, “such dem- onstrations of joy are morally necessary to the common weal.”¹⁷

¹⁷ Theol. Mor., l. III, n. 304: “The reason is that such signs of joy are morally necessary to the commonwealth and are therefore permitted by custom.” (Ed. Gaudé, I, 567).

The prohibition of servile labor and of business and court proceedings obliges, generally speaking, under pain of mortal sin, but admits of parvitas materiae (operis seu temporis). According to a more probable opinion, now held by most theologians, it is not a mortal sin to work, say, two or two and one-half hours on Sunday, provided the work engaged in is not extremely servile in character and does not exhaust the body. Scandal or disturbance of the peace may render even a shorter period mortally sinful. In regard to opera forensia the determining factor is not the duration of the proceedings (quantitas temporis), but the nature or character of the work done (qualitas operis).

687. Forensic works prohibited are a) public market and b) forensic acts or judicial commotion; for both are signified by the name forum: the place where trials are held, and the place where markets are held (can. 1248).

1. Under the name of market there are prohibited a) annual fairs which are celebrated once or twice in a year; it is excepted if by custom they are tolerated somewhere, but to introduce such a custom would be a sin; b) quasi-weekly fairs which are held once or twice in a week (the practice exists of transferring them to another day); c) negotiations held on the Exchange; d) public rentals and sales of houses, fields, trees, furniture, etc.; but private ones are not prohibited, even if such contracts are made before a notary; e) per se sales and purchases in public shops are also prohibited; but in certain regions, as in Belgium, there already seems to be a legitimate custom of selling and buying in this way indiscriminately whatever things; likewise it is licit to sell things of lesser importance even in public streets, such as newspapers, flowers, cards, and some edible things.

2. Under the name of forensic acts or judicial commotion there are prohibited actions which intrinsically regard the cognizance and decision of both secular and ecclesiastical judicial matters, such as summoning and hearing the parties, interrogating witnesses, receiving a judicial oath, taking proofs, rendering or executing sentence.² But extrajudicial acts are not prohibited, such as privately consulting advocates or informing judges, or examining a case, or questioning a client, or transcribing the acts of a suit.

² It should be noted that ecclesiastical trials are also prohibited on the last three days of Holy Week (can. 1639).

Many works which are not servile, indeed very many works of the soul, otherwise licit, are forbidden by this law.

Of the former kind, two such works there are: markets and the forum, cap. 1. et ultimo de feriis, as Suarez notes cap. 29. Fagundez cap. 12. sic et in the Council of Macon II cap. 1. judicial actions are forbidden; and in the Council of Tours cap. 40. markets and pleadings are interdicted.

This prohibition accords with the old civil law, for leg. ult. ff. de feriis, it is said that festivals are to grant vacations from forensic business. So they are forbidden also by the newer law, Cod. de feriis, leg. 1. 2. 3. et ult.

The reason is, that on account of quarrels and contentions men are distracted from the service of God, and because those clamors draw to sin, as Suarez noted cap. 29. with the Panormitan cap. ult. de feriis.

The first forbidden work, therefore, is the market, and by this name the law understands contracts of purchases, leases, etc. which are indeed valid, but illicit on a feast; judicial acts, however, are both illicit and invalid, if done on a feast.

Yet custom now renders these contracts licit; not so judicial acts. So Suarez cap. 30. Fagundez cap. 12. num. 1. and others among them.

¶ First, therefore, public fairs are forbidden, which are celebrated once or twice a year: yet custom renders them licit, as Navarr. man. Lat. cap. 13. art. 4. Fagundez lib. I. cap. 12. num. 4. and others with Bassaeus num. 15. teach. For custom can abrogate things which are of human law, as the Doctors commonly teach.

Yet custom cannot, while the feast remains, remove the obligation of Mass, as Fagundez notes num. 6. Suarez cap. 29. Navarrus, Toletus above, and others.

There are also other markets, often celebrated, and they are illicit by law; yet they can be removed by reasonable custom. Bassaeus, however, warns that custom be not extended to these, urged by private authority.

To the third kind of market belong daily contracts, with shops open, which are interdicted by Canon law, which is in vigorous observance. So Navarr. loco cit. Fagundez 8. Sylvester, see Dominica. Others, however, do not condemn rustic contracts on a feast day, with whom Diana subscribes, p. p. Tract. 15. resol. 34. Bass. loco cit. if they can hardly be done on other days.

Yet it was never, nor is it, forbidden to buy necessaries for the sustenance of that day. So Caietanus art. 4. Suarez loc. cit. Fagundez num. 8. with St. Bonaventure, serm. 4. in Decal. Bassaeus num. 15. Indeed they say that not even to sell shoes is a sin. So Suarez and Fagundez. Yet in all other things the holy Doctor warns, in the Speculum animae, cap. 2., that it must be observed whether by universal custom each of them is permitted by the Church.

The other kind of works forbidden on a feast is the work of pleading, or the forensic judgment. For in canon law all actions constituting a forensic judgment are signified by the name of a work of pleading, as Suarez notes cap. 19. Fagundez num. 9. For strictly, placitum signifies an election of the will. Hence also the object applied to the will is called placitum, Genes. 24. A Domino egressus est sermo : Non possumus extra placitum eius quidquam aliud loqui. ("A word came forth from the Lord: we cannot speak anything else besides His decree.") It also signifies a decree of the mind. Thus the opinions of Philosophers and Physicians are called Placita. And in this way things decreed by God or the Prince are called Placita, Prou. 10. Labia iusta considerant placita. ("The lips of the just consider pleasing things.") And Ioan. 8. Quae placita sunt ei facio, ("I do the things that are pleasing to him,") as the holy Doctor observes there. Also a term appointed for defining is called a Placitum, 2. Reg. 10. Moratus est extra placitum, quod ei constituerat Rex. ("He delayed beyond the term which the king had appointed him.") Since, therefore, in a forensic judgment, according to the will and arbitration of the judge regulated by the laws, either a term for appearing is appointed, or decrees and sentences are pronounced, therefore the whole cognizance of a forensic cause is called a pleading, cap. 1. de feriis, 15. quaest. 4. et cap. ultimo.

In a judgment many persons intervene, who are bound to keep the feasts with respect to forensic actions.

The parts of a judgment are: the inception of the cause, which begins with the citation, the formation of the process, and the term of the judgment, or the pronouncing of the sentence. And all these are void of themselves on feast days, cap. ultimo de feriis. So the Doctors commonly teach, Suarez cap. 30. Fagundez cap. 12. num. 12. and others among them.

Yet judicial acts done with the consent of the parties are valid on rural holidays introduced for the gathering of the fruits, as Suarez, Fagundez loc. cit. and Maranta note part. 4. ord. iud. dist. 16. num. 83.; but not on the feasts of festival days in honor of God.

Yet if judicial acts are done for the public peace, for piety, for urgent necessity, they are valid even on God's holidays. See Fagundez num. 12. Bassaeus num. 16. where he allows that in wills it is licit, where otherwise they would not be fitting.

Acts of voluntary jurisdiction are also valid: to emancipate, to adopt, to free slaves, to establish tutors, to make wills, and instruments of manumission. So Sylvest. see Dominica. Maranta 6. part. ord. iud. and others, cited by Fagundez num. 14. Bassaeus num. 14.

First, therefore, invalid is a citation made on a holiday in honor of God, indeed even, according to some, if they are cited for a feast day: yet others say they are bound to appear on the following day. See Fagundez cap. 13.

Second, neither can suits be promoted, witnesses examined, etc. And indeed it is certain that on a feast day a juridical oath cannot be exacted. But whether witnesses can be examined on a feast day, provided they have sworn on a non-festal day, the negative part seems more certain. See Fagundez cap. 13. Suarez cap. 30. Bassaeus num. 20. Some limit this in a spiritual cause, such as matrimony. So Caietanus, citing D. Thomas 2. 2. quaest. 89. art. 10.

Others likewise limit, that this prohibition does not proceed to the presentation of a libellus against a party already cited. So Maranta part. 6. titulo isto. But Baldus and many Canonists hold the opposite, cited by Fagundez num. 20. who nevertheless inclines to the former opinion.

Third, a sentence passed on a feast day is illicit and invalid, cap. ultimo de feriis, where we read: Nec processus habitus teneat, nec sententia ; ("Nor shall the process had hold, nor the sentence;") and it is confirmed by l. ult. C. de feriis.

Similarly execution is forbidden on a feast day, as Felin. teaches in cap. ultimo de Iud. Suarez cap. 30. The reason is, for by cap. 1. de feriis, et l. ult. C. de feriis, cited, all things pertaining to the contentious forum are forbidden. Fagundez approves cap. 13. num. 23.

Yet an appeal can be intimated. So it is to be held without doubt, says Fagundez num. 24. citing very many. Indeed Bassaeus num. 18. says it is absolutely licit, by the more common opinion.

A grave doubt is: whether the sentence of an arbitrator is valid on a feast day.

Arbiter and Arbitrator differ, for the latter is a friendly composer, compromiser, and mediator of peace, as Suarez says cap. 30. and he can decide on a feast day. But the Arbiter is he who, by the consent of the parties, is chosen as judge, so that, with the order of law preserved and the process made, he may pronounce sentence, and to whom the parties are bound under a stipulated penalty, as Fagundez notes num. 26. cum Maranata 4. parte, tit. Iudicium arbitrarium, and Suarez loc. cit. and he is bound to preserve the order of a judgment, and therefore, although a compromissum can be made on a feast day, because it is a contract, nevertheless he cannot pronounce sentence on a feast day.

There is also another Judge, who is called Arbiter iuris, who is chosen by necessity of law, e.g. when a judge is alleged to be suspect, and he is bound to provide, with the order of law preserved, and he cannot pronounce sentence on a feast day.

Inquisitors of the faith can pronounce sentence against heretics on a feast day, justly and validly. So Fagundez num. 28. citing others.

I conclude with D. Bonaventure in speculo animae, cap. 2. that in all the things said above universal custom and the permission of the Church must be attended to; for it hangs on the mind of the Legislator. But if the Church still gravely forbids, then one must abstain, he concludes, from vacations, markets, etc. Add: from annual reckonings without necessity. See Bassaeus num. 23. Pasqualigo decis. 150. but Sylvester, Tabiena, Medina, and others approve.