Contracts for an unlawful act; payment for a crime committed

The matter must be something of which the contracting party has the disposal, or of which he will have the disposal when the contract has to be executed, for he cannot transfer to another what he cannot dispose of. When an object is already due to another in justice, its transfer to him cannot form the matter of a new contract, and so if a judge sells justice to a litigant he is bound to restore the bribe, to which he has no title... One may, however, enter into a contract with a third person to do what is already owing in justice to someone else, provided that both obtain their full rights. A doctor, for example, may charge next-door neighbours the full fee for a visit to each, though he has only the trouble and expense of one journey. Similarly, what is already due, not in justice but out of charity or some other virtue, may form the matter of contract.

There can be no obligation to do what is wrong, and so. the matter of a contract must be something which is lawful and honest. It is obvious that a contract to do what is forbidden by the moral law is invalid. If, however, such a contract has been executed and the crime committed by one of the parties, the question arises whether he has a right to the money or other compensation which was promised, and which, as we suppose, may be received without sin. There are two opinions about this question. Some theologians hold that no such right can exist, for the contract was invalid from the beginning and remains so; mere lapse of time cannot make it valid. On the other hand, many great authorities maintain that the actual doing of the sinful action in favour of one party to whom it is agreeable, and to whom it affords advantage of some sort, is the concluding of an innominate contract, and gives the party who did it a claim in justice to the compensation promised. Both views are probable, and so after the sin has been committed, and consideration for it has been paid, there will be no obligation to make restitution.

Sometimes the Church forbids a contract under pain of sin only, and then such contract will be unlawful but valid, as is a mixed marriage without the requisite dispensation; sometimes she forbids a contract and also invalidates it, as she does clandestine marriages.

There are some contracts which are illegal in English law, and yet they are valid in common estimation. This is the case with betting, and so if the contract is valid according to the law of nature, it will be obligatory in conscience, though unenforceable by English law. Other illegal contracts which are forbidden by the civil law of England are not thereby made invalid in conscience if they are valid by the law of nature. The law merely affects the external legality of the contract which it refuses to enforce. If, however, one who has entered into such a contract wishes for good reason to avoid it, and acts without fraud or injustice to the other party, he may take advantage of the law and rescind his contract.

This doctrine is in keeping with what has already been said in similar questions concerning the effect of civil law and with the views of modern theologians on the subject.

644. 4. Honorable and licit: for no one can obligate himself to something evil, nor demand that an illicit thing be done.

(A) Wherefore if two entered a pact concerning an illicit thing, or under a base condition, - e.g., I give you one thousand coins that you may kill Titius, or if you kill Titius, it is certain that the contract is invalid before the evil work has been perpetrated; and therefore neither contracting party is bound to fulfill it, but each is bound to recede from it; indeed, if the price for the base action has already been paid, it must be restored.

645. (B) After the work has been perpetrated, it is controverted whether one contracting party is bound to pay the promised price, and the other can licitly demand and retain it. - All indeed acknowledge that the price must be paid when the thing which was promised is good in itself, although from an accidental circumstance it was illicit; e.g., if a reward was promised to one working servilely on Sunday. - But the question is whether the same must be said when the matter concerns a thing evil in itself.

646. (a) The first opinion teaches that the contract is void, even after the work has been perpetrated, and therefore that the price is not to be paid, nor, if paid, can it be retained.¹ For 1) the promised reward is not owed as the price of the illicit thing, since this is not estimable by price, but rather worthy of chastisement; nor by force of promise: for a contract invalid from the beginning cannot be strengthened by the passage of time; 2) moreover the public good demands that such a price cannot be exacted: for if after the crime has been perpetrated it can be exacted, but not before, the evildoer by that very fact is induced to perpetrate the crime immediately, lest he be deprived of the agreed reward. Hence generally civil laws prohibit the promised price from being paid, because deservedly it is judged to be nothing other than an incitement to crime.

¹ Comitolus, Resp. moral., l. III, q. 5; Carriere, n. 331-338, with many authors alleged there; Beusch, cap. IV, n. 272; Gousset, n. 753.

647. (b) The second opinion holds that, after the work has been perpetrated, the price can be exacted.² For 1) an illicit work, although by reason of fault and formally as a sin, is not estimable by price, nevertheless materially taken, insofar as it is an action useful or pleasant to one, but laborious and dangerous to another, can be estimated by price, and is worthy of reward. 2) Moreover the contract of which there is question is composed of two contracts, of which one is a promise concerning an evil thing (I promise you one thousand coins that you may kill Titius), but the other is concerning the paying of the price, if the evil work has been perpetrated (I give you one thousand for the killing of Titius); the former contract, as concerning an illicit thing, is invalid, but the latter has force, because it is not concerning an illicit thing, but concerning the paying of the price for a material work, which is estimable by price. 3) The Sacred Penitentiary seemed to confirm this opinion when it declared that a prostitute can retain the price of prostitution.³

² St. Thomas, 2. 2., q. 32, a. 7; q. 87, a. 2, ad 2; Lugo, de Justitia, disp. XVIII, n. 45-74; Billuart, diss. I, art. 8; St. Alphonsus, n. 712; Ball. P., n. 581-599; Noldin, 517, and others sufficiently commonly.

³ Sacred Penitentiary, April 23, 1822, in Carriere, n. 338. Doubt: - "A prostitute who obtained a great sum of money by granting the use of her body to various lovers has very recently been converted. Is she bound to restore every price of her crimes, or only a part, or to spend it on pious works? And if she is held to either, is it from strict justice, or only from counsel? N. B. this prostitute, restitution having been made, would not be reduced to the greatest poverty." - The response was: "The penitent woman is not to be compelled, but to be exhorted, that she spend the price of prostitution, according to the judgment of a prudent confessor, for pious uses."

648. If it is permitted to disclose our mind, we think that the contract, even after the delict has been perpetrated, remains invalid: for a contract invalid from the beginning cannot be strengthened; and moreover the alleged distinction of a twofold contract does not seem to rest upon a solid foundation: for morally there is one contract, and, since the act is illicit from its own nature, the labor annexed to it cannot be said to be estimable by price. - But, if he who acted illicitly has suffered some damage, under this head he can receive proportionate compensation; thus perhaps the decision of the Sacred Penitentiary adduced above can be understood: namely, the prostitute can retain the price accepted as compensation for damage inflicted upon herself; and in the same way not a few theologians who favor the second opinion can be understood.

649. Practical conclusions. (a) Today, in most regions, civil laws declare invalid contracts entered concerning an illicit thing; and, since they were passed for the common good, they oblige in conscience, at least after the sentence of the judge. Therefore he who promised money for a dishonorable thing is not strictly bound to pay it, even after the work has been perpetrated: for he can use the benefit conceded to him by law, especially since, with natural law inspected, the matter is doubtful; but by natural law he must compensate damages which followed from this work, according to the principles explained above concerning the unjust damager.

(b) Moreover he who, after the work has been perpetrated, has accepted the price promised to him, can retain it with a safe conscience if it does not exceed the limits of just compensation owed to him for the damage inflicted; but if the price exceeds these limits, he is indeed to be exhorted, but not compelled, to restore this excess.

650. (c) If someone, without any pact, has accepted gifts which, all circumstances being considered, are given for this end, that the donee may be induced to sin, these are not necessarily to be restored from strict justice, because they can be regarded as gratuitous gifts. But restitution is altogether to be counseled, lest from the retention of the gift someone be enticed to sin; thus, e.g., an honorable woman who from the circumstances understands that many things are being given to her by a man so that she may act more freely with him, must firmly reject all these things if she wishes to remain chaste.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Now:

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

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

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

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

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

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

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

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

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

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

³ Vermeersch, Quaestiones de Iustitia, n. 294.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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