Tractatus I: PRIMUS DE VIRTUTIBUS THEOLOGICIS

Quaestio I: What a CONTRACT is, and of how many kinds

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.

Quaestio II: Whether for the validity of a Contract the intention of contracting, and of binding oneself, is required

ST. BONAVENTURE DISTINGUISHES, in 4. dist. 27. art. 2. quaest. 2., validity in the Forum of conscience and in the External forum.

THEREFORE in the forum of conscience, if you had no intention of contracting — indeed you intended not to contract — the contract does not subsist in the forum of conscience. Nevertheless you will be bound in the same forum for all the damages proceeding from your fraud to the one contracting in good faith, and in the external forum you will be forced to stand to the contract, because the external forum judges only what is external, not hidden intentions. So Sanchez, Lib. 1. de matrim. disput. 9., Tanner., disp. 4. quaest. 6. 329., Fagundez, lib. 1. de contract. cap. 2. num. 3., who say the same much more of vows and other quasi-contracts, which regard the forum of conscience more, because God, who is the searcher of hearts, regards the will more than external acts, cap. si quandoquidem, 15. quaest. 6.; nevertheless you are bound for the damages, as I said, and to stand to the contract in the external forum, cap. cum Apostolica, de rescrip. cap. ex tenore, eodem titulo, ad finem, cap. ex litteris de constitut. Leg. quoties, §. qui dolo, ff. de probat. et 30. quaest. 1. cap. Dictum: Fraus, et dolus nemini debent patrocinari, as the Holy Doctor argues, in the place cited.

BUT IF you wished to contract, yet not to bind yourself, many affirm that you are bound. So concerning the contract of matrimony, and any other contract whatever, teach Peter Ledesma, de matrim. quaest. 43. art. 1. dub. 2.

BUT SPEAKING of contracts and of a vow, hold Soto, lib. 7. de iust. quaest. 1. art. 2., Gutierrez, lib. 2. canon. qq. cap. 22. num. 31., Aragon., 1. 2. quaest. 88. art. 1., Ludov. Lopez, p. p. Instruct. cap. 92., Suarez, lib. 2. de iuram. cap. 7. et lib. 1. de voto, cap. 3., fighting most keenly.

THE SECOND opinion is that such a one is not bound. So Fagundez, lib. 1. de contract. cap. 2., Henriquez, lib. 11. de matrim. cap. 13. num. 2., speaking of the contract of matrimony; but of a vow, Lessius, lib. 3. de voto, cap. 40. dub. 1., Azor, p. p. lib. 2. cap. 17. quaestio 9., Valentia, disp. 6. quaest. 6. puncto 1., Navar., summa, cap. 12. num. 38., Sanchez, tom. 1. de matrim. lib. 1. disp. 9., where he adduces twelve Doctors on this. This is the opinion of St. Bonaventure, in the place cited, and in the preceding quaest.

I ASSERT, with this opinion, that one contracting with the intention of not binding oneself is truly not bound.

IT IS PROVED from St. Bonaventure first, quaest. 1., because a contract binds of itself from within; and indeed obligation arises from the will of binding oneself; but this man did not will to bind himself; therefore he did not will the contract. And so it implies willing the contract and not willing to bind oneself; but the negative, since it is destructive and poisoned, takes away even the positive will of contracting, as the Seraphic Doctor teaches everywhere.

IT IS CONFIRMED, for the obligation resulting from the will of contracting does not result naturally; but it is a moral effect hanging upon the liberty of the will.

IT IS PROVED secondly from St. Bonaventure, quaest. 2., from Innocent III, and it is found de sponsalibus, where he decrees that, the intention of binding oneself failing, matrimony is not valid.

IT IS PROVED thirdly from the Holy Doctor. Where the formal reason fails, and therefore the form, the quiddity of the thing fails, and consequently the thing itself; but consent is the form of the words which make matrimony; therefore, the intention of binding oneself failing, there is no contract. The minor is proved, for a contract is an obligation from one side and the other, arising from the will and agreement of the parties, as I said at the beginning of the disputation, and the acts of agents do not obligate beyond their intention. The same the Holy Doctor argues of baptism, 4. dist. 6. art. 2. quaest. 1.; but by God's law we bind ourselves in that.

IT IS PROVED fourthly from St. Bonaventure, dist. 28. quaest. 3., that a condition contrary to the substance of matrimony annuls it, ex cap. finali de condit. appositis; for although the one contracting have the intention of contracting under a condition, that matrimony, for example, be for a time and not perpetual, he does not contract, because matrimony, if it is, is perpetual and indissoluble, as the Holy Doctor proves, dist. 28. art. 2. quaest. 1.; therefore, since to bind oneself is of its intrinsic reason, he who contracts under the condition of not binding himself does not contract. The Authors of this opinion use these arguments.

THE FOUNDATIONS of the opposite opinion are undermined by these foundations, nail against nail as it were. But indeed, if you had the intention of contracting and of binding yourself, you are bound, even if you had not the intention of executing. So commonly the Doctors, cited in Fagundez, num. 9.

THE REASON is, because he who wills the antecedent wills also the consequent, lib. 1. §. 1. ff. si usufrust. pet., when the consequent will infallibly follow upon it, as the Holy Doctor argues, in 2. dist. 32. art. 3. quaest. 2. ad 2., and in other places, where he brings the example of one who wills to be Abbot of monks; consequently he ought also to will to be a monk; otherwise he is a fool.

Quaestio III: How Error, or fraud, vitiates a Contract

It is to be noted from St. Bonaventure, book 4, distinction 30, question 1, and doubt 3, that error concerning a contract can be twofold.

The first concerns the substance of the thing; the second, its accidents. Error concerning the substance of the thing arises, for example, when you wish to buy, and you ask for a gold necklace, and you receive one of brass; or if you ask for a diamond, and you are given a piece of crystal. Error concerning accidents occurs if you wish and ask for gilded copper, and it is given to you, but spotted; or if you ask for a horse, and you are given a defective one.

Yet the Saintly Doctor admonishes on these points at article 4, that if you ask for a necklace in general, and name it gold, while not knowing the price of gold, nor what gold is, and copper is given to you at a fitting price, there will be no substantial error, because your intention is only about a metal necklace, but you name it gold, speaking like a magpie. Say the same also of error through deceit.

I assert first that error, or deceit, concerning the substance of the thing contracted about renders the contract null by natural law, if it is a preceding error, or deceit, giving cause to the contract, which being removed the contract would not have been made.

It is proved first by Cardinal Bonaventure, in the place cited, on the first foundation: consent being taken away, the contract is taken away. It is confirmed by the Saintly Doctor; for we are not held to will what we do not know, and much less something different from what we do know; as if we want gold, and copper is given. Fagundez uses this argument, chapter 3.

It is proved secondly from the Saintly Doctor. The voluntary is that whose moving principle is within, in the one willing, knowing the particulars: Therefore the involuntary is what comes to us from without against our knowledge, through error.

It is proved thirdly from the Saintly Doctor. No less involuntary is what is done through violence than what is done through error. And it is confirmed from cause 29, question 1, where it is defined.

It is confirmed by the Saintly Doctor in the body of the text, with the same arguments, adding the authority of Cardinal Augustine, book 2 of the Trinity, chapter 1, and tractate 96 on John, where he says: We can love what we see: what we do not know, by no means.

This assertion is received with great applause by St. Thomas, II II, question 77, article 3, Molina, tractate 2 on justice, disputation 259, and the Thomists there, Lessius, volume 1, book 2, chapter 17, doubt 5, number 27, Sanchez, book 7 on marriage, disputation 18, number 12, Bonacina on contracts in general, disputation 3, question 1, point 2, § 1, and others among these; and Tanner says, disputation 4, question 7, doubt 1, number 11, that it is the opinion of all.

Fagundez nevertheless adds, number 6, with Sálaza on sales, doubt 35, that there can be error concerning the substance, and yet the contract still hold, as if alchemic gold were of the same perfection as gold taken from veins, and that were given to you for this; or if one slave girl were bought and given for another of the same quality, or from an apothecary one medicine of equal virtue in place of the one ordered by the physician. But these either do not vary the substance, and if they do, they break the contract; as if I wished that particular slave girl by number, and would not buy another, or that medicine. In the matter of marriage, however, it is certain, as these very men concede, that it is invalid.

I assert secondly, with Cardinal Bonaventure, whom Fagundez follows, number 9, Suárez, tractate 1 on laws, book 1, chapter 11, number 6, Sanchez, book 1 on marriage, disputation 64, Molina, tractate 2, disputation 272, Navarre, Latin Summa, chapter 2, number 27, and commonly, that if the error concerns accidents which gravely alter the judgment of the thing, and which can be reduced, by the judgment of the prudent, to the substance of the thing, the contract is null.

The reason is, because the consent necessary is supposed absent, as above.

Hence I conclude, with St. Bonaventure, book 4, distinction 30, doubt 6, that if the error concerns virtue and morals, for instance if she be dishonest whom I judged honest, these are circumstances greatly to be weighed, and Sanchez says they can break betrothals.

I assert thirdly: if the error concerns circumstances of lesser moment, in the judgment of the prudent, then even if he would not contract if he knew, it is probable that it does not void the contract by natural law. So Molina, tractate 2, disputation 352, Rebello, book 1, question 6, section 2, number 11, and book 9, question 1, Bonacina on contracts, disputation 3, article 1, point 2, Mantica on ambiguous agreements, book 1, title 9, Aegidius Lusitanus on the law "ex hoc iure," chapter 8, number 95.

Therefore if you contracted with her whom you thought rich, noble, beautiful, and you found her ignoble, poor, bleary-eyed; the contract stands, because these do not greatly vary in this contract.

The reason is also, because that error, or deceit, is indeed a cause of the contract; yet it still has its own object, on which it falls, that is, the substance of the thing, as Pontius says, book 4 on marriage, chapter 21.

In another way Casas defines it, tractate 19, disputation 1, section 3, number 35, with Castro Palau, volume 3, tractate 14, disputation 2, point 5. Whenever error, or deceit, is only a causative cause, but not the object of the contract, it will not be null by natural law; but if it is an object expressly declared, such a contract will be null, but not if only implicitly; because then the error, or deceit, is held to be accidental, since there is still supposed an object sufficient for the being of the contract.

The Seraphic Doctor, distinction 30, doubt 3, distinguishes error concerning accidents thus, for instance concerning goods of fortune, in marriage: it can be an impulsive cause in estimation only, and in hope, in such a way that the consent falls upon the person still precisely determined, as upon the object of consent; or it can be such that consent is suspended upon the person, and under this condition it falls: I accept the person, if she is rich, and not otherwise. In the first way the Saintly Doctor says the contract is valid, because consent still has a sufficient object upon which to fall; but in the other way, since consent is absent but reserved, it will not be valid.

He ADDS, however, at question 1, error concerning accidentals in marriage, concerning condition, or servitude, because it prejudices the great good of liberty; but this is a deposit of positive law, as he explains at distinction 36, question 2.

IN the response indeed to the last, he distinguishes thus: error concerning goods of fortune, for instance concerning nobility, dignity, and other accidentals, can be twofold. First, if one errs concerning the subject of the person. Second, if concerning the properties.

Error occurs CONCERNING the subject, when the girl, knowing and recognizing the person, for instance the son of the King of England, by sight or by hearing, consents to him and not to another, and then there will be a substantial error voiding the contract of marriage. But if she does not recognize the person of the son of the King of England, but only believes that this one whom she sees has that dignity, then since she consents only to this one, the consent will be valid, even if he is not endowed with that dignity.

I ASSERT fourthly; if we speak of positive law, the most received opinion is the one teaching: if the error concerns the substance of the thing, and the accidents and substantial qualities which greatly vary the judgment, and the contract itself is made in good faith on one part, and through deceit on the other, so that the deceit gives cause to the contract, the contract is null by positive law. So Vasquez on the law of Emphyteusis, question 5, number 9, Lusitanus on the law "ex hoc iure," Digest on justice and law, chapter 8, from number 93, Bonacina on contracts, disputation 3, question 1, point 3, § 2, Gómez, volume 2, varieties, chapter 2, number 48, Fagundez, book 1, chapter 3, Bassaeus V. Contractus, Tanner, disputation 4, question 7, doubt 1. It is clear from Law 1, and from the law "sciendum," § last, Digest on the aedilitian edict, and from Law 65, title 5, Partidas 5.

It is PROVED by Cardinal Bonaventure, in the question lately adduced, from the matter of marriage, from cause 29, question 1, and from the reasons adduced for the first assertion. For what is invalid by natural law cannot be validated by positive law; otherwise positive law would be against natural law.

WHAT we have said of antecedent error, some apply also to concomitant error, not only in the contract of marriage, as when you contract with Bertha, thinking her Titia, but yet you would contract more gladly with Titia if you recognized her; but also in other contracts, as if you buy crystal, judging it a gem, but yet you would buy even if you knew it to be crystal. So Fagundez, number 7, adducing St. Thomas, I II, question 6, article 8, Bonacina on contracts, disputation 3, question 1, point 2, § 1, and on marriage, question 3, point 2, number 3.

HENCE you observe, it is disputed: whether a contract excused from deceit can be validated, the option being given by natural law to the deceived party, to stand by the contract or not, if it is reduced to equality; and both opinions are probable: I judge that it can, because by natural law the deceived party can repair the injury.

BUT by natural law the deceiver is held to stand by the contract; if the deceived party so wills, but this after the judge's sentence.

It is PROVED by Cardinal Bonaventure, book 4, distinction 17, article 2, question 2, ad 4, from cause 30, question 1, also in every forum, whether judicial, civil, or Canonical: indeed even in the forum of conscience, where it is defined that fraud and deceit ought not to avail the defrauder, law "Quoties," § "qui dolo," Digest on proofs, from the chapter "sedes Apostolica," on rescripts, the chapter "ex tenore" of the same, and the chapter "ex literis," on deceit and contempt, and finally the final law, title 2, Partidas 4, which defines, that the option must always be given to the deceived party, whether he wills or does not will to stand by the contract, which by natural law was void, in punishment of the deceit, lest he obtain advantage from his own deceit; for the whole law always resists deceit and fraud, as Fagundez notes, number 18.

There is given also to the deceived party an action against the third party who committed the deceit, law 2, Digest on proceeds and rights introduced, and every deceiver is held in conscience to restitution of damages before the judge's sentence; for deceit and fraud are of the genus of mortal sin, as Reginald shows in practice, book 25, number 125, Bonacina on contracts, disputation 3, question 1, point 2, § 2, Fagundez, number 23, from Cardinal Bonaventure in the Mirror of the Soul, chapter 2, § the second branch, and the following.

Quaestio IV: How fear voids a Contract

The holy Doctor PREFACES in dist. 29, question 1, that fear is twofold. One is grave, which is also called just, and falling upon a constant man; the other light, which is also called falling upon an inconstant man, L. metu, ff. de eo, quod metus causa, cap. consultationi, cap. veniens, 2. de sponsal. cap. Cum dilectus, de his quae vi. Grave fear is fear of some great evil considered absolutely and in itself, which we fear is about to befall us or ours; such is inflicted fear of death, mutilation, atrocious torture, violation, servitude, loss of goods, of status, of honor, of great gain, of infamy, of unjust excommunication, etc. as Sanchez proves lib. 4. de matrim. disp. 5.

Whether indeed these evils threaten us or ours, they instill grave fear. So Menochius tract. 1. lib. 2. de arbitr. centur. 2. casu 136. Azor p. p. lib. 2. cap. 17. dub. 6. Sanchez lib. 4. de matrim. disput. 1.

IN SONS, as Leg. Isti quidem, §. fine, ff. de eo, quod metus causa, proves; for children are part of the father, as Aristotle teaches in the Ethics.

IN WIVES, AND HUSBANDS, because they are one. So D. Thom. in 4. dist. 29. quaest. unic. art. 2. ad 3. D. Bonavent. same dist. and others teaches.

IN FATHERS, BROTHERS, AND SISTERS leg. ult. Cod. de impub. et aliis substit. §. hi, qui, Instit. de inut. stipul. and the Doctors commonly; and concerning all connected in the first degree the Praep. teaches cap. cum locum de sponsal. num. 10. Cucus lib. 5. inst. Maior tit. 22. num. 156.

IN OTHER KINDRED, AND AFFINES, because, as is said in cap. non existimemus, 13. quaest. 2., they are one flesh. It is also proved by cap. sciant cuncti de elect. in 6., which text Iason calls notable, leg. de pupillo, §. si quis ipsi, num. 12. ff. de oper. nov. nunciat.

IN FRIENDS JOINED BY THE TIGHTEST BOND IT IS PROVED, because a friend is another self, as the Philosopher says, 6. Eth. cap. 4. and D. Augustine lib. 4. confess. cap. 6. Hence grave fear of an evil, whether ours or our dear ones', is said to be inflicted, and it invalidates the contract, if the evil truly impends.

LIGHT fear is reverential fear, on account of the presence of some grave person; yet this fear, if threats, harsh words, etc. are added, can become grave. Therefore one must note that fear is called grave and light respectively; for what is light fear for someone, say a man, will be grave for a girl, as Sanchez shows, citing some fifty Doctors, and it is proved ex Leg. 3. ff. ex quibus causis.

FIVE conditions, however, are required for fear to be grave.

FIRST, that the evil feared be grave leg metum, ff. de eo quod metus causa; there Labeo says fear is to be understood not as any fear whatever, but of a greater evil, that is, a great evil, as the Gloss explains.

SECOND is, that it be feared rationally, not for a light cause: it is clear ex Leg. metum cit. ibi, "fear, however, not of a vain man, but of one who fears deservedly," and Leg. Nec timorem, §. proinde, ff. eodem. Whence Eccl. 19: He who quickly believes is light of heart. So D. Thom. 4. dist. 29. quaest unic. art. 2. D. Bonavent. same dist. quaest. 1. in the body, and others. And indeed true infliction of punishments is not required, but a probable and not vain fear, as S. Bonavent. and others prove, as cited by Sanchez lib. 4. de matrim. diss. 1. num. 16.

THIRD condition is, that the one instilling fear be able to carry out his threats. So D. Bonavent. loco cit. It is clear ex Leg. famosi, ff. ad legem Iulia maiest. and Sanchez proves cit. num. 19.

FOURTH is, that the one making threats be accustomed to carry them out; for if he is ready to remit them, the fear is not grave, ex Leg. Unica, Cod. si quis Imperatori, and Leg. famosi cited.

FIFTH is, that the one fearing be unable to avoid the evils threatened. So Sanchez num. 23. and at the same time Fagundez cap. 5.

The Doctors note here also that grave fear can proceed from an extrinsic natural agent and natural cause, as from a storm, disease, etc.; or from an extrinsic living being operating by natural impulse, as from a brute animal, a drunkard, and a madman; or finally from an extrinsic freely acting agent, such as a man or a demon.

THEREFORE, if fear is instilled by an extrinsic natural agent, the contract is not held invalid, even though the consent there is conditional, as if, were no shipwreck threatening from the storm, or death from disease, he would not vow or swear to do this. The reason is that such fear is not injurious, but is often sent by the providence of God to do holy works, or to rouse penance, as the Council of Trent teaches sess. 14. cap. 4. Therefore it adds: For by this fear the Ninevites, usefully shaken, did penance at the preaching of Jonah, full of terrors, and obtained mercy from the Lord.

Then, however, penance, to be right, ought not to have conditional consent. "If ruin did not impend, I would not repent," as I shall say in my Tract. de Poenit. Disput. de contritione.

THIS is the doctrine of D. Thom. prima secundae, q. 6. and D. Bonavent. in 3. dist. 34. part. 2. quaest. 1. and 2. Vasquez part. 2. disp. 27. cap. 3. Sanchez in decal. lib. 4. cap. 1. Fagundez cap. 5. num. 17. and it is clear ex cap. de regul. where the vow of a sick man, made from fear of death, is declared valid. The same is said if the inflicted fear is from a brute animal, a drunkard, etc.

BUT if the inflicted fear is from a freely acting agent to extort consent, the most certain resolution of all the Doctors is that the contract is invalid. So D. Bonavent. 4. dist. 29. quaest. 1. Sanchez lib. 4. decal. cap. 3. Suarez Tom. 3. de relig. lib. 6. cap. 4. Lessius lib. 2. cap. 17. dub. 6. Azor part. 1. lib. 1. cap. 10. num. 11. and part. 3. lib. 6. cap. 7. Bonacina de contract. disp. 3. quaest. prima, puncto 2. §. 3. Fagundez lib. 1. de contract. cap. 5. num. 18. Tanner. disp. 4. quaest. 6. num. 315.

A GRAVE question, however, is: whether such contracts are invalid by natural law, or rather by positive law. The Doctors are divided into two lines.

The FIRST opinion is that they are not invalid by natural law. So Paludanus 4. dist. 15. quaest. 2. art. 5. Sanchez lib. 4. de matrim. disp. 15. num. 5. et lib. 4. decal. cap. 3. num. 9. Suarez lib. 1. de relig. cap. 7. num. 12. Corbo quaest. 46. Valentia Tom. 4. disp. 10. quaest. 3. puncto 2. Henriquez lib. 11. cap. 9. Pet Ledessm. quaest. 47. art. 3. Tanner. loco cit. Azor. p. p. lib. 11. cap. 15. quaestio 6. Lessius lib. 2. cap. 40. dub. 1. speaking of a vow, and speaking of contracts cap. 17. dub. 6. from num. 36. Vasquez prima secundae, disp. 27. cap. 3. Bonacina de contract. disp. 3. quaest. 1. puncto 2. §. 2. Fagundez de contract. lib. 1. cap. 6. num. 5. Caspensis Tract. 19. de contract. disp. 1. sect. 4. who takes innumerable authorities for this opinion as listed with Sanchez. Ballixus subscribes, V. Contractus num. 21.

They except, however, contracts of marriage, betrothal, dowry for marriage, and profession in Religion, which nevertheless they maintain can be rescinded by a judge's sentence.

CONCERNING marriage the Doctors commonly teach this, Sanchez, speaking of marriage and betrothal lib 4. de matrim. disp. 12. a num. 18. Azor 3. part. lib. 3. cap. 7. Lessius Tom. 1. lib. 2. cap. 17. dub. 6. n. 37. Henriquez de matrim. lib. 11. cap. 9. num. 6. Bonacina de matrim. quaest. 3. puncto 8. num. 31. where he also proves the same of betrothals from many most weighty Doctors, and it is clear ex cap. veniens 2. et cap. cum locum 1. et cap. consolationi de sponsal.

AND consequentially concerning the promise of a dowry they give the same warning, Azorius, Lessius, Bonacina and Fagundez, cited.

The REASON is, because marriage is perpetual, nor after it has been legitimately contracted is there any longer room for invalidation, as in other contracts; therefore perfect liberty is required to contract.

HENCE consequentially concerning profession in Religion they deduce the same, Sanchez lib. 4. decal. cap. 5. Suarez tract. 3. de Relig. lib. 6. cap. 4. Fagundez num. 5. and it is clear ex cap. de his, quae vi.

OF any simple vow whatsoever, in whatever matter it be made, Suarez asserts it valid de voto lib. 1. cap. 18. a num. 5. and others; but that such simple vows extorted by fear are invalid teach Sanchez Tom. 1. decal. lib. 4. cap. 3. num. 12. Cardin. cap. 2. quaest. 1. casu 4. de his quae vi. Sylvest. verb. metus, q. 8. and verb. votum 2. quaest. 12. Tolet. lib. 4. summae, cap. 17. Nauar. summa Latina, cap. 12. num. 52. et commonit 2. de regular. num. 15. Azor. p. p. lib. 11. cap. 11. quaestio 7. Abbas, Sotus, Aragon, and others cited by Sanchez, and Bonacina de matrim. quaest. 3. puncto 8. a num. 2. to whom Fagundez subscribes num. 6.

OF an oath extorted by grave fear they commonly assert that it is valid by natural law; and the reason is, because an oath is a promise made with God asserted as its witness. Therefore, lest God be a false witness, it will be valid by natural law.

AS TO a testament extorted by grave fear, that it is null by natural law, Sanchez asserts lib. 4. de matrim. disp. 8. num. 6. Molina tom. 1. de Iust. Tract. 2. disp 136. Spino in speculo glosae, Rubr. 2. part. num. 5. Guttier. de quaest. canon. lib. 2. cap. 11. num. 83. Caldas in Leg. si iuratorem, v. contractum, num. 27. which most common opinion Fagundez applauds, number 8.

The REASON is, because a testament is the last will, and therefore it ought to remain free until death, nor is it confirmed except by the death of the testator, as the Apostle says, Heb. cap. 6.; therefore fear cannot give it firmness.

CONCERNING the collation of a benefice extorted by fear, Garcia asserts it valid by natural law de benef. part. 11. cap. 3. §. 2. num. 145. Fagundez num. 9. and they say it is clear from cap. super hoc penult. de renunc. cap. Abbas, cap. ad aures, cap. ad audientiam de his, quae vi, and Rebuffus teaches it in praxi benefic. tit. de resign. metu fact. and tit. de vi, in resign. adhibita, and tit. de causis resignationem irritantibus, Rosinus lib. 19. de benefic. Nauar. in cap. accepta, de restit. spoliat. opposit. 4. 5. and 6. Flaminius de resign. lib. 13. quaest. 1. and 2. Azor 2. part. lib. 7. cap. 26. quaestio 1. Selua de benefic. 3. part. quaest. 32. They prove it by the reasons I shall set out at the end.

WE must also, with another distinction of contracts, set out various opinions.

AND indeed that a lucrative and promissory contract celebrated under just fear is valid by natural law, Sotus teaches in 4. dist. 29. quaest. 1. art. 3. which he had almost taught lib. 6. de iust. quaest. 1. art. 4. teaching that a donation, or promise, made under just fear is valid by natural law. The same hold Henriquez lib. 11. cap. 9. Carbo de test. cap. 46. quaest. 4. Ledesma de matrim. quaest. 47. art. 3. dub. 1. ad 3. Sanchez de matrim. lib. 4. disp. 8. num. 4. Lessius lib. 2. cap. 7. dub. 6. num. 37. ex leg. ultima, Cod. de his, quae vi, which opinion Diana judges probable part. 3. tract. 5. resol. 118.

THE OPPOSITE, however, no less probable, others defend, namely that a contract of liberal donation, or promise, celebrated from grave fear, is invalid by natural law. So Medina Cod. de restitut. quaest. 3. causa 2. Aragon 2. 2. quaest. 86. art. 7. Rebellius part. 2. lib. 1. quaest. 5. conclu. 1. Molina, and Azor, whom, as cited, Basilius Pontius follows de matrimonio, lib. 4. cap. 6. numero 4. Diana loco citato.

The SAME concerning onerous contracts Rebell. asserts loco cit. and others with him. Others, however, assert these contracts (excepting marriage) valid — I mean those contracts in which a thing is given for a thing given. So Basilius Pontius cap. 7. citing Soto, Richard, Paludanus, Sylvester, Navarrus, Henriquez, Molina, and Vasquez. Indeed Pontius says cap. 9. that it is valid even by positive law; yet he grants the action, and limits it only in gaming, and the alienation of the goods of the Church, and Diana notes these things resol. 119. to remove scruples. Bassaeus defends almost this opinion V. Contractus, num. 21. excluding some.

TRULY indeed, Molina asserts all contracts extorted by fear to be invalid by natural law Tract. 2. de Iustitia, disput. 267. et 326. Sotus in 4. dist. 29. quaest. 1. art. 3. et lib. 7. de iustitia, quaest. 2. art. 1. et lib. 8. quaest. 1. art. 7. Salas part. 2. quaest. 6. art. 6. dub. 3. sect. 1. speaking of contracts outside marriage: but speaking of the contract of marriage, where the reason is the same, the same maintain Matienzo lib. 5. recopil. tit. 2. rubr. gloss. 1. num. 189. Barbosa, ff. solut. matrim. rubr. 4. num. 30. Couar. in 4. decret. 2. part. cap. 3. §. 5. Veracruz p. p. speculi, art. 8. Gabriel in 3. dist. 39. quaest. 1. art. 2. concl. 8. Bartholom. Ledesma dub. 23. de matrim. concl. 3. Philiar. de offic. sacerd. Tom. 1. part. 2. lib. 2. cap. 8. and Sanchez says it is most probable lib. 4. de matrim. disp. 14. Fagundez also cites D. Bonavent. 4. dist. 39. quaest. prima, art. 2. concl. 8.

The holy Doctor supports his opinion not there; but dist. 29. quaest. 1. in the body, where indeed he treats of the contract of marriage, but his reason is universal, taken from the consent of the will being necessary; which embraces other contracts also; and indeed, although he does not refuse to call the opposite opinion, weighed from this passage, probable, he concludes that this one is more probable at the end of the body.

I ASSERT first, that the former opinion is not improbable.

It is PROVED first by D. Bonavent. because, where there is consent sufficient for a moral act, there is a valid moral act; but consent from fear is sufficient for a moral act, as I showed prima secunda, Tract. 1. disput. 3. where I showed that grave fear does not simply take away liberty. And if contracts are rescinded by positive law, this is from indulgence, because he is judged not to have consented fully with his whole heart, but to redeem the penalty.

It is PROVED second by the holy Doctor; because he who receives Baptism through fear of death is baptized: Therefore by natural law what is done from fear is valid, at least as to those things that concern God.

It is PROVED third by the holy Doctor: The will cannot be forced to consent, but only freely induced by a creature. Then thus: He is no less induced by troublesome prayers and blandishments than the one who fears; but the latter consents to contracts sufficiently by natural law: Therefore so does the former. The major is held by many Doctors, as Fagundez admits.

INDEED the holy Doctor replies, that blandishments and prayers do not equal fear, unless tacit threats lie beneath, as Sanchez also teaches lib. 4. de matrim. disp. 7. num. 7. Fagundez cap. 5. num. 25. Romanus Leg. interpositas, Cod. de transact. Nauar. summa, cap. 17. num. 16. Mascardus de probat. concl. 193. numero 4. and 8. Ludov. Lopez p. p. Instruct. cap. 96. And Hippolytus and others will the same, singulae. 645. Sigism. inter consilia feudalia, cons. 17. num. 21. Albertus Brunus inter the same counsels, consil. 14. num. 387. Burgo de Paz consil. 25. num. 72. while they say that the blandishments of princes instill fear in a constant man, because, namely, hidden threats are present; for Princes are accustomed to avenge rebuffs.

It is PROVED fourth by the holy Doctor: Where there is consent sufficient for mortal sin, there is consent sufficient for a contract; but in our case such is found: Therefore. The minor is proved by D. Bonavent. for if anyone denies Christ through fear of death, he sins mortally.

Yet the holy Doctor replies, denying the parity, because more things are required to constitute what requires an integral cause; than to do an evil, which is done from any defect whatever; whence it does not follow that, if conditional consent, shaken by fear, suffices for sin, such consent also suffices for a good act: Therefore, if someone under fear of death, or even of hell, elicited a conditional act of attrition for his sins, namely intending that, with the fear of death or hell removed, he would not grieve, it will be an imperfect act, indeed a blameworthy one, preferring himself to God.

NEXT he replies that fear falling upon a constant man is not that which is instilled to contemn the Divine majesty: For a constant man ought to prefer God to all things. Therefore the fear falling upon a constant man is held to be that which is instilled to do or omit something that is not contrary to salvation, which can also rationally be done and omitted. For if anyone wished to undergo death lest he consent to some indifferent thing, he would certainly act not as constant, but as imprudent; say, if death were threatened to someone unless he were willing to go to the square by the other road, equally convenient, and he persisted in going by the road suspected to the other. But contracts are of the kind of things not necessary to salvation.

I ASSERT second, more probable, that contracts extorted by grave fear are invalid by natural law.

It is PROVED by D. Bonavent. first, most validly, by the first foundation, for the laws declare marriage contracted under grave fear invalid from defect of consent, which natural law requires, but they do not invalidate it by positive law; indeed many past marriages they declare to have been invalid by natural law, and to be just as if they had never been made, as is clear ex cap. cum locum, et cap. consolamini, et cap veniens 2. de sponsal. and ex cap. significasti de eo, qui duxit uxorem; Similarly cap. primo, de his, quae vi: profession made under grave fear is not invalidated, but declared invalid, and no text is found in the whole law that invalidates it.

Fagundez REPLIES num. 10. granting that marriage shaken by fear is null by natural law. Similarly, betrothal, and the promise of a dowry, and profession of religion, as above; but he denies the parity concerning other contracts.

AGAINST, because he does not perceive the force of the argument of D. Bonaventure. It stands in this: What is invalid from defect of consent is such by natural law; but every contract shaken by grave fear is null from defect of consent: Therefore. The minor is proved, for the Pontiffs declare marriage null if made under grave fear, and allege a reason taken not from a consent peculiar to the marriage contract, because it is perpetual; but because it is a contract in its genus, which is an indifferent being, not necessary to salvation. Therefore every contract shaken by grave fear is invalid by natural law.

It is PROVED second by the holy Doctor, because every contract by which dominion is transferred to another ought to be free; but where there is fear falling upon a constant man, there is not full liberty: Therefore.

The ADVERSARIES reply that these contracts are simply voluntary, and that such consent suffices for mortal sin. But I met this reason above.

It is PROVED third by D. Bonavent. concerning marriage. Contracts which are made with God, such as profession and a private vow, proceed in the same way as marriage: But those are invalid by natural law if shaken by grave fear: Therefore also marriage. The major is proved, for marriage is the sign of the union of the Church, or of the soul, with God; but the sign measures the signed.

It is PROVED fourth by the holy Doctor, as to marriage, because the contract of marriage is through love, and this conjugal love ought to be perpetual, according to the Apostle's word: Husbands, love your Wives, as Christ the Church; but coerced consent is not with love: Therefore.

It is PROVED fifth by the holy Doctor; because in an onerous contract there ought to be equals, so that the giver render equally: but where there is grave fear, equality is not given: therefore an onerous contract is not valid by natural law, if it is made from grave fear.

It is PROVED sixth validly, by an argument taken from D. Bonavent. 4. dist. 27. art. 2. quaest. 1. argument 4. with the reply added. Natural law dictates that no one take gain from the loss which one, through his deceit, injustice, and malice, gives to another, as all the laws cry, 30. quaest. 1. cap. Dictum, cap. sedes Apostolicae, cap. ex tenore de rescript. cap. ex litteris de dolo, and leg. quoties, §. qui dolo, ff. de probat. But he would take a great deal of gain who would shake consent to a contract from another by grave fear through malice and iniquity, unless the contract were invalid by natural law; for he could keep the thing in conscience, and its fruits meanwhile, until the contract were rescinded by a judge, which is an enormous absurdity; but absurdities are especially to be avoided in law, Leg. Nam quod absurdum, ff. operis lib. cap. dudum de praebend. in 6.

Fagundez REPLIES num. 10. that then he is held in the forum of conscience to restore everything, and this he gravely enjoins on Confessors for their tribunal, which is the tribunal of truth. But he says he is held to this restitution by reason of the loss inflicted; for natural law commands it, not by reason of the contract.

AGAINST, I argue most validly. What inflicts loss against natural law is forbidden by natural law, if from the force of the action the loss follows formally; but through you, from the contract extorted by fear, loss against natural law is produced and inflicted: Therefore such a contract also is forbidden by natural law, and null.

I strengthen this attack validly by Diana's argument. Almost countless Doctors, and some of the adversaries, as Lessius, Sanchez, Navarrus, and Sylvester with Pontius n. 6. assert that he who unjustly extorts something by force and fear from a donor is bound to restitution: Therefore dominion is not transferred, and therefore the contract was not valid by natural law; for if it were valid by natural law, it would not have to be restored before the judge's sentence; for thus dominion would be transferred.

Since, therefore, dominion has not been conveyed to these, and therefore they are under a continuing burden of restitution, as D. Bonaventure teaches in speculo animae, cap. 2. near the end; it follows that it is invalid by natural law. From which Pontius and Rebellus, in Lessius and Sanchez, deduce grave inconsequences.

HERE I note that Fagundez num. 2. in the first argument presses this for us, as if we inferred that, if liberal contracts extorted by fear are invalid, much more onerous ones; but on the contrary, for he who donates from fear receives nothing, and he who contracts, giving a thing for an equal thing, receives also another thing, whence he is less specifically burdened, and therefore is an injustice of nature, inferior in species. Whence it would be freer to argue: if an onerous contract extorted by fear is just by natural law, much more a gratuitous one of donations, promises, etc.

Therefore Caspensis replies to the argument number 38. according to the mind of Vasquez, that onerous ones are valid by the very law of nature, because it is a sufficient title for their value, namely of the thing given and received. But lucrative ones are not valid by natural law, because in these there is no other title for transferring dominion besides the will, which, since it is coerced, is not sufficient for transferring dominion.

BUT I showed both invalid from other chapters, namely, because consent is lacking, whatever Caspensis num. 39. may mutter, who ineptly argues: light fear does not make contracts invalid by natural law, as is clear from leg. Vani timoris, ff. de reg. iuris, and Leg. metum, ff. de eo quod metus causa; and yet light fear inflicts an injury: Therefore neither does grave.

It is replied, however, that the reason is unlike, because grave fear takes away the liberty of consent, not so light fear, as the holy Doctor notes at the end of the body.

But to our argument above, and to the attack, Caspen. num. 40. and 41. replies that such contracts are simply voluntary and free, nor is it enough to make them invalid if he is bound to restitution; for both can be at once, nor does it repugn, that the contract be valid and that there be an obligation to rescind it, if the other wishes.

For it is against, because the argument was taken from the debt of restitution, as is seen above.

From what has been said it is also clear that the second conclusion of Caspensis num. 44. is false: that contracts (excepting very few, that is, marriage, betrothals, religious profession, Witnesses employed in a testament, promises of the goods of the Church, absolution from censures) are not invalid by positive law; but are to be invalidated, which he proves from certain laws, where things done through fear are to be rescinded Leg. ult. Cod. de his, quae vi, and cap. Abbas, de his, quae vi. And Instit. de except. at the beginning.

It is answered indeed, that some laws only say definitively that such contracts are to be declared invalid; for other laws clearly affirm that they are invalid.

A question however can be: whether also from light fear contracts are invalid by law.

The first opinion is that such contracts are invalid in conscience. So Panorm. in cap. ad Audientiam, and other Canonists, whom Molina cites Tract. 2. disput. 326. de Legibus, Battolus, in Leg. metum, and others.

Of the Theologians Sotus lib. 6. de Iust. quaest. 1. art. 4. et lib. 8. quaest. 1. art. 7. ad 3. Sà verb. contractus, numero 3. Carbo quaest. 46. de restit. Palat. lib. 4. de contract. cap. 9. Lessius lib. 2. cap. 17. dub. 2. num. 46. Rebellius p. p. lib. 1. quaest. 5. with these injunctions, which he says num. 9. and 26. Sanchez de matrim. lib. 4. disp. 9. num. 4. Tanner. here, disp. 4. quaest. 6. num. 121. who brings forward the reason, because that fear is the cause of the contract which would not have been made, and he reports many texts of both Laws, which only say that fear and violence make contracts invalid; but they understand fear equivalent to violence, namely grave, which is called fear simply.

For when something is said to be such absolutely, it is understood to be such simply, not such in a certain respect. From which you have that Lessius does not infer rightly, that as many as refuse [to admit] that fear falling upon a constant man invalidates a contract by natural law are bound to sustain this opinion. Among these, however, he lists D. Bonavent. 4. dist. 29. quaest. 1. Sotus ibi, quaest. unic. Gabr. quaest. 2. art. 2. in supplem. but he excepts marriage, which he teaches is not invalidated by light fear, with others; although others say it is invalidated, among whom he lists D. Bonaventure as to be placed.

The other opinion is that such contracts are valid in conscience. So Medina Cod. de restitut. quaest. 3. causa 9. Basilius Poncius de matrim. lib. 4. cap. 10. num. 5. Fagundez lib. 1. cap. 6. num. 12. Menochius lib. 2. de arbitr. iudic. 2. casu 136. num. 2. Franciscus Ripa lib. 3. resp. cap. 15. num. 8. Bonacina dispm. 3. quaest. 1. puncto 2. §. 3. and others with these, adding that contracts can be invalidated, provided however the contracts be invalidable; for if they are not invalidable, they teach that by both laws they are valid, as marriage, profession of religion, and sacred orders; so also Fagundez above.

As to D. Bonavent. he judges no such contract to be invalid by natural law, and as to marriage and other perpetual contracts, he says they can by no law be revoked hence. The reason is, which the others employ, because fear here does not shake liberty so that the act is not free. From which the adverse foundation falls.

From these Caspensis deduces num. 47. that things done under light fear are not to be rescinded by any law, because this action is given in law only on account of grave fear; nevertheless in the forum of conscience they can be rescinded, if the sufferer wishes.

He also infers that things done from reverential fear can be rescinded; and that he who takes gain from them is bound to restitution, because, although this fear is not grave, it is nevertheless injurious, and the cause of the act. So Navar. cap. 17. num. 152. Peter Navar. lib. 3. cap. primo, dub. 7. and others. Therefore, the contract being rescinded, he who entered it through fear will be bound to restitution. Thus a son, who, fearing his father's indignation, promised to pay his legacies, or debts, is not bound.

For a crown-piece Molina notes Tom. 2. disp. 82. put. 267. Lessius tract. 2. lib. 2. dub. 6. num. 39. Sanchez lib. 4. de matrim. disp. 8. num. 7. Fagundez cap. 6. num. 13. that it matters little whether fear is instilled by the contracting party or by another third party; for the same is to be thought of both.

Quaestio V: On conditional Contracts

On Conditional Contracts.

NOTANDUM (to be noted), following D. Bonaventure, that a conditional contract requires some condition in order to exist. Now a condition may concern the past, the present, or the future; and again it may be honorable, or dishonorable, or necessary, or contingent.

IF the condition concerns a past event, or the present, it does not suspend consent, because the condition has already been fulfilled or not fulfilled, and it cannot be otherwise; as if you give me an estate, if I was in Rome last year. Or: I take you in marriage, if your Father is dead, or if you are a virgin. So the Holy Doctor, whom very many follow, as Sanchez has it lib. 5. de matrim. disput. 6. Rebell. lib. 2. quaest. 15. Therefore the contract is not suspended by the force of such a condition, as the Holy Doctor explains, and with him Sanchez lib. 8. de matrim. disput. 10. num. 4. et 5. and lib. 4. decal. disp. 23.

IF indeed the conditions are future and contingent, the contract is suspended until the condition is fulfilled, and then the contract brings a absolute obligation, and therefore a new consent of the contracting parties is not required. So it is held with many authorities adduced, as Sanchez disput. 8. de matrim. lib. 5. Azor 3. part. lib. 6. cap. 15. et p. p. lib. 11. cap. 7. quaest. 9. Navar. sum. Lat. cap. 2. numero 63. Innocent. in cap. 1. num. 4. et in cap. super eo, in fine.

IF indeed the conditions are necessary, they are not judged to suspend the contract, because those conditions are necessary, as if you should say: I take you in marriage, if the sun rises tomorrow. So D. Bonaventure, and with him Azor p. p. lib. 11. cap. 15. quaest. 9. Sanchez lib. 5. de matrim. disp. 5. num. 1. and lib. 4. Decal. cap. 23. Suarez Tom. 3. de relig. lib. 6. cap. 12. num. 16. Fagundez lib. 1. de contract. cap. 7. num. 6.

IF indeed the condition be naturally, or morally impossible, the Doctors hold different views.

FOR MANY say that such a condition vitiates the contract by the law itself. So Lessius lib. 2. cap. 18. dub. 15. num. 121. Azor p. p. lib. 11. cap. 15. quaest. 9. Sanchez tract. 1. decal. cap. 23. num. 8. Bonacina de contract. disp. 3. quaest. 1. puncto 4. num. 10. Vasquez de restis. c. 7. disp. 10. speaking of wills, and it is found in Leg. servo manumisso, ff. de condit. instit.

Others say that such a condition is judged as if not appended, and the contract stands. This seems to be the opinion of D. Bonaventure, for even concerning conditions that cannot be morally fulfilled, he says the conditions are to be judged as not added. This is the view of Philiarch. tract. 1. de offic. sacerd. part. 1. lib. 3. cap. 21. and others.

If indeed the condition be contrary to the substance of the contract, it will be null, as D. Bonaventure asserts concerning Matrimony loco cit. patet ex cap. fin. de condit. apposit. et cap. soles 32. quaest. 2. et lib. 5. tit. 4. part. 4. and the reason of D. Bonaventure is, because without its proper substance a thing does not subsist, cap. tua nos de sponsal. cap. detrahe 1. quaest. 1. facit leg. cum hi, §. si Praetor, ff. de transact. So also D. Thom. 3. part. quaest. 47. art. 5. in addit. The same concerning other contracts the Doctors commonly teach, as found in Fagundez lib. 1. cap. 7.

S. Bonaventure then inquires about this wicked condition: I contract with you, if you use poison to procure sterility in our marriage.

The Holy Doctor answers: it invalidates the marriage. So also Paludanus 4. dist. 29. quaest. 2. art. 5. num. 27. Sanchez lib. 5. de matrim. disp. 9. num. 8. Fagundez lib. 1. cap. 7. num. 24. The reason is, because it is just the same as binding oneself to take those poisons, which is against the substance of matrimony, as the Holy Doctor notes.

But if the condition be wicked, yet not against the substance of the contract, as: I take you in marriage, provided you go mad. I say, these conditions are to be judged as if not appended, and the contract is valid; wherefore they are reckoned with morally impossible conditions. For we can do only that which we can do licitly and justly Lege Nepos. Proculo 125. ff. de verb. signific. So D. Bonaventure loco cit. whom follow Ludovicus Lopez 2. part. Instruct. lib. 11. de matrim. cap. 12. Palat. lib. 5. de contract. cap. ult. folio 498. Sotus in 4. dist. 29. quaest. 1. art. 3. Gregorius Lopez lib. 6. verbo si furata res, titulo 4. part. 4.

When indeed the shameful conditions concern the present, or the past, since they already are, or already are not, in act: if they are, the contract is valid; otherwise it is void. So D. Thom. 4. dist. 29. quaest. unic. art. 3. quaest. 3. Paludanus ibi quaest. 2. art. 5. num. 28. Palatius lib. 5. de contract. cap. ult. fol. 498. Henriquez lib. 11. de matrim. cap. 12. num. 7. Alexander de Neuo in cap. de illis, num. 18. Couar. in 4. Decretal. 2. part. cap. 3. §. 2. num. 2. Sylvest. V. matrim. 3. quaesit. 1. Fagundez num. 18.

If the condition concerns the future, depending on the will of a third party, and it is positive, the first act of the third party's will is to be attended to; as: I betroth you to myself, if my father shall wish it. But if it is negative, all the acts are to be attended to; v. g. if my father shall not have objected; then at whatever time he objects, if the matter is still intact, the contract will be void, because it belongs to the nature of negation to destroy all things.

If you promise under this condition: if Peter gives Francis a house, it will suffice if he offers it, even if Francis does not accept, because it did not lie with him Leg. debitor, ff. de usuris. Azor p. p. lib. 11. cap. 15. quaestio 9. and it is deduced ex Leg. si ita, ff. de condit. inst. and ex Lege, statu liber, ff. de statu libero. The same is taught by Sanchez lib. 1. de matrim. disp. 33. num. 19. and lib. 4. Decal. cap. 23. num. 18.

If a condition appended to a contract is impeded by one of the contracting parties, with the other consenting, both already withdraw from the contract; but if with the other unwilling, the one impeding is held to the contract, as if the condition had been fulfilled. So Roderic. a Cunha in decret. in cap. quae ad nos, dist. 47. Molina de primog. lib. 2. cap. 13. num. 15. Sanchez lib. 4. decal. cap. 23. num. 47. Fagundez cap. 7. num. 26. It is proved from the rule: Cum per eum non fiat 66. de regul. iuris in 6. and ex regula in iure civili 122. ff. de regulis iuris, et Leg. in excavatione 85. §. fin. ff. de verb. oblig.

The reason is, because a contract requires good faith in the appended condition, which therefore one ought not to impede, either by oneself, or through another. See Sanchez loco cit. num. 48.

The Holy Doctor adds, that if a condition of marriage is by way of penalty, it has no force, because it ought to be free; whence, even if he does not contract, he is not held to that penalty.

Quaestio VI: On the obligation that results from a valid Contract

On the obligation that results from a valid Contract.

The general rule among the Doctors is this. A contract validly celebrated begets a natural obligation in the forum of conscience (forum Poli), such that one party cannot withdraw from it in conscience. So the Doctors commonly hold with D. Bonaventure in 4. dist. 27. et sequentibus, passim.

I said validly celebrated, because contracts are often prohibited by positive law, or commanded with such solemnity, without which they are void, as Suarez notes lib. 5. de Legibus, cap. 24. Salas disp. 16. sect. 4. Bonacina disp. 1. quaest. 1. puncto 7. §. 5.

If the positive law does not render persons incapable, but simply invalidates a contract made without such solemnity, then it is disputed: whether it has force in the forum of conscience.

The common opinion teaches that it does not. So Suarez, Salas, and Bonacina alleged above, Azor part. 3. lib. 6. cap. 9. Fagundez lib. 1. cap. 4. de contract. num. 7.

The reason of D. Bonav. in 4. dist. 28. quaest. 5. is, because the common and public good naturally preponderates over the private; but often, to avoid inconveniences, the civil law intervenes. See the Holy Doctor in corpore, et ad 1. where, I think, he adduces the incapacity of persons as a partial example of those things which law is wont to decree for invalidating contracts.

Where he also seems to teach that not all acts, or omissions, forbidden by law, invalidate contracts. A striking sign of invalidity is this, if the law says: let it be void ipso iure, or facto. See Suarez lib. 5. de legibus, cap. 26. et 32. Bonacina de contract. disp. 3. quaest. 1. puncto 3. Likewise if the law says, they cannot contract. So Sanchez lib. 6. decal. cap. 12. num. 10. et lib. 6. de matrim. disp. 38. num. 20. and Fagundez teaches that this opinion is already most common lib. 1. cap. 4. num. 11.

But if the law decrees something, supposing a contract already made, it is not judged to invalidate it. So Suarez lib. 5. cap. 32. as if it be decreed that from such a sale the gabel tax be paid, otherwise that contract be void.

You will ask: whether when the law invalidates contracts out of a presumption of fraud, they are valid where there was no fraud.

It is answered: if the Law invalidates absolutely out of the presumption that fraud could underlie them when done otherwise, they will always be void; for the Law, speaking absolutely, must be taken absolutely, ex Leg. pretio, ff. de publican. Leg. 1. §. et generaliter, ff. de legatis, prae- stand. Leg. 1. §. quod autem, ff. de aleatoribus, Menochius cons. 74. The reason is, because the root is commonly bad, as the Holy Doctor notes in speculo animae, cap. 2. §. Quartus fructus rapina. And in this manner the invalidations of contracts are commonly done.

ADVERTE (take note), however, that often from contracts there results an eviction, which is the loss of a just title by which one possessed another's property.

OBSERVANDUM (to be observed) also, that there are many obligations for avoiding culpable negligence. Now there is one gross (lata) fault; another light (levis); another most light (levissima). Some add a widest (latissima) one, which is Dolo (fraud), as Barr. notes in Leg. Quod Nerva, ff. depositi, who also adds a grosser fault, which is presumed fraud (dolus praesumptus); but these are reduced to gross fault.

GROSS fault (CULPA lata), is the omission of the diligence ordinary among provident men for guarding their own things: as if you place a book lent to you on the public road.

LIGHT fault (LEVIS) is the omission of the diligence customary among the more diligent; as if you do not lock the house with a key.

MOST LIGHT fault (LEVISSIMA) is the omission of the diligence which the most diligent employ; as if, going out, and thinking the gate closed with the key, you do not test whether it is so, Leg. si Pater, ff. ad Legem Aquil. Leg. Dinuu, ff. de offic. praes.

The FIRST rule is. When a contract is made for the sole utility of the receiver, he is held regarding most light fault, and a fortiori regarding light, and gross fault. So Molina tract. 2. disput. 293. num. 13. Nauar. sum. cap. 17. numero 184. Syluester V. culpa, num. 84. et verb. commodatum, quaest. 8. Lessius lib. 2. cap. 2. dub. 3. num. 11. Bonacina de contract. disp. 3. quaest. 1. puncto 6. It is clear from Leg. Vinnu, de offic. praesid. et Leg. si putator, ff. ad Leg. Aquiliam. The example is: if you have a garment on loan, and you place it in a chest, not locked.

EXCEPT, however, the one who receives precariously, who is held only regarding gross fault, or fraud Leg. contractus, ff. de reg. iuris, et Leg. Quaesitum, §. et illud, ff. de precario. So Sylvester, verb. precarium.

The SECOND rule. When the contract redounds to the utility of the giver alone, then the receiver is held only regarding gross fault, or fraud; as if you have deposited with me a hundred gold coins, that I may keep them for you gratis.

The THIRD rule is. If the contract is for the utility of both, the receiver is held regarding light, and gross fault, not regarding most light fault.

WHETHER, however, these rules hold only in the forum Soli, or also in the forum Poli; the opinions are difficult, and the probability stands on both sides. See Fagundez lib. XI. cap. 10.

Quaestio VII: Which persons can enter into a Contract, and which cannot

FIRST of all, the insane and the furious are excluded from contracting. So asserts St. Bonaventure in 4. dist. 34. art. 3. quaest. 1.

St. Doctor observes, moreover, that there are several species of the insane. Some are insane perpetually; others have lucid intervals, and to this species drunkards are reduced. These three species appear in Leg. Hoc colore, 2. ff. de inoffic. test. joined with Leg. 17. ff. de Testament.

I ASSERT first. Those insane perpetually are incapable of making contracts, of drawing up wills, and of marriage.

AS TO contracts, even of matrimony, this is clear from §. furiosus, Instit. de inut. stipul. et in Leg. ubi non vero, §. furiosus, ff. de reg. iuris, D. Bonaventure in the place cited, D. Thomas eadem. dist. quaest. unic. art. 4. Sanchez book 1 de matrim. disp. 8. num. 15. Fagundez book 1 de contract. chapter 11.

The UNIVERSAL REASON of D. Bonaventure, which the others use, is that a free consensus is required for a contract; but these lack it, and therefore they can neither merit nor demerit, and consequently neither bind themselves, because they are held as dead, Leg. Qui ad certum, ff. locat. Leg. Bonorum, ff. rem ratam haberi.

YOU WILL OBJECT: Fabian the Pope, cap. furiosus, 32. q. 7.: "Neither a furious man nor a furious woman can contract marriage, but if it has been contracted, they are not to be separated."

Fagundez answers num. 3., from D. Bonaventure in 4. dist. 34. dub. 7. litt., that the Pontiff speaks of the furious in act, who cannot contract; but those who contract in a time of sound mind, even if afterwards they become foolish or dash their head against a wall, it will be a valid marriage.

I SAY second, that the furious who have lucid intervals, and indeed return to sanity of mind, can contract and make wills, from Leg. cum furiosus, ff. de iudiciis; and the Doctors commonly teach this with D. Bonaventure, alleged above.

The REASON of St. Doctor, which the others use, is that liberty for consent is present.

The proof of a lucid interval, moreover, is difficult, because there is an unfavorable presumption about such persons: what is required is that for some considerable time he act with deeds that a prudent judgment would deem to argue a perfect use of reason. So Burgos de paz. consil. 11. num. 19. Surdus consil. 89. num. 43. Fagundez cap. 11. num. 6.

IN doubt, moreover, when perpetual fury is not established, he is to be presumed of sound mind, because nature does not usually produce insane men, but men endowed with judgment; wherefore, since this presumption is natural, one must stand by it. So Reinosus observ. 32. Gloss. V. probari in Leg. ne Codicillus, Cod. de codicill. et in cap. ult. v. compotem, de success. ab intest. Boer. decif. 23. Mantica de coniect. ult. vol. lib. VII. tit. 15. num. 3. Couar. in 4. decretal. 2. part. num. 5. Menoch. with very many others lib. VI. praesumpt. 45. num. 18. Sanchez book 1 de matrim. disp. 8. num. 17. and it is clear from the text in Leg. 2. Cod. qui testam. facere possunt.

Spendthrifts are held to be the counterpart of the insane. Now the spendthrift is he who, lavishing without discretion, gives what should not be given, consuming and squandering his goods, as D. Bonaventure teaches in opusc. terminorum Theologiae declaratio, and Ulpian leg. 1. v. minoribus, ff. de iurat. furios: Gregorius Lopez lib. 5. tit. 11. part. 5. Hence prodigality is a vice of profusion, dissipative of one's own things without cause, as St. Doctor says, and it is a vice against the virtue of prudence and temperance, as is gathered ex text. in cap. saepe, dist. 45. et ex glossa in cap. ex parte penult. de consuet. and Cutnha teaches dist. 86. cap. 15. num. 4. Wherefore in ancient times tutors were given to spendthrifts as if to infants; so it was customary at Athens, as Athenaeus testifies lib. IV. caenae sapientum, cap. 20.; so also the Romans had decreed it in their own laws, and in Lusitania it is practiced lib. IV. nov. ordin. tit. 105. For spendthrifts are in this respect equated with the furious, as St. Doctor indicates in 15. Lucae at these words: In se autem reversus. And at these words: Erat filius senior in agro: for he is called elder because sensible: and at these words: Filius meus mortuus erat, et revixit, for spendthrifts are held as dead because of the lack of prudence and reason under which they labor.

Nor does l. in re mandata, Cod. mandati, stand in the way, which says the rich abuse their goods; for that is held true when someone lacks every vice of mind. Then it is true, moreover, before the administration is taken from him.

But that someone be proven a spendthrift, the deeds must be examined; for some seem to speak prudently but to act imprudently, Leg. is qui 12. ff. de tutor. et curat.

THEREFORE the actions of spendthrifts, before a curator has been given them, are valid; but afterwards by no means without the authority of the curator, Leg. Iulianus, ff. de tutor. furios. Before the provision of the Judge, however, if the spendthrift alienates, one may recur to the judge, that he redeem it, as the Jurists say, cited at Fagundez lib. 1. cap. 11.

That the spendthrift has indeed come to his senses will be proven if he acts prudently for at least two years, as the Doctors say.

AND truly, if a notorious spendthrift be chosen for the governance of the Church, such an election will be null, because it is harmful to the Church, argumento, leg. final. Cod. de sent. pass.

THERE FOLLOW minors and those below the age of puberty, to whom the faculty of making contracts is denied.

They are called INFANTS, moreover, sons up to the seventh year; from that age up to the years of puberty, impuberes; puberty begins in males in the fourteenth year, in females in the twelfth; and thereafter up to the twenty-fifth year they are called minors, as the Doctors commonly teach with D. Bonaventure in 4. dist. 27. art. 2. quaest. 1. And indeed before the seventh year boys and girls cannot contract, as all teach with D. Bonaventure dist. cit. quaest. 2.

The reason is that free consent is lacking; thereafter, up to the years of puberty, tutors are given them, during which time they are wards; after that, up to the twenty-fifth year, curators; and if before this year he is proven to have been wronged, he can be restored to his original position, Leg. in causa 13. §. interdum, et Leg. Quod si minor, §. non semper, ff. de minoribus.

A period of four years after majority is PRESCRIBED for restitution in integrum, according to the Clementinam unic. de restit. in integrum, et Leg final. where the Doctors treat de restit. in integrum, and this time runs from the point of the celebration of the contract. So teach Antonius Picardus, lib. 2. instit. titulo 19. and others at Fagundez cap. 12.

ALL the contracts of minors, therefore, in order to be valid require the decree of the Judge and the consent of curators or tutors, if they are wards, and one without the other does not suffice. Hence the alienation of the goods of minors without the other does not suffice. Hence the alienation of the goods of minors, without the decree of the judge and the consent of curators or tutors respectively, is null, as St. Doctor shows in 4. dist. 15. part. 2. art. 2. quaest. 1. ad arg.

REINOSUS obser. 30. Hercules Marescot lib. 1. variarum resol. cap. 68. num. 8. et leg. cit. 38. num. 15. Bartol. and others on Leg. Cum hi, §. eam transactionem, ff de transact. Provided, however, that fraud and deceit are absent; otherwise they will be void, leg. 1. ff. de minoribus, et leg. finali. A male over twenty years, and a female over eighteen years, could nevertheless petition the Prince for enabling.

NOTE, moreover, that the alienation or contract of minors done without the decree of the judge and the consent of the tutor is invalid, and is not revalidated if they arrive after the contract has begun. The reason is that these intervene as cause, which ought to precede, as Fagundez notes cap. 12. num. 16, and D. Bonaventure intimates in 4. dist. 29. and 30. passim. For the due consent ought to precede, not follow.

NOTE second, that tutors, curators, their sons, or wives cannot buy the goods of a ward; otherwise the sale is invalid Leg. Non licet, et Leg. si emptione 23.

YOU WILL ASK: can wards, at least in the forum of conscience, bind themselves by contracts?

The FIRST opinion is the negative one of very many, at Fagundez cap. 13.

The SECOND is the affirmative one of very many there, and it seems more probable.

The REASON is that a contract made by a curator is confirmed by an oath, as Sanchez lib. 6. de matrim. disp. 38. num. 13. proves. Therefore a natural obligation arises from it.

It is confirmed; for minors and wards can consecrate themselves to God by vows without tutors, as others teach with D. Bonaventure in 4. dist. 38. quaest. 3.

SONS of the family too, namely those under the power of the Father, even if they exceed twenty-five years, can indeed contract concerning CASTRENSIAN and quasi-CASTRENSIAN goods, because concerning these they have the most plenary right, so that they can even make wills about them, as most Doctors argue, at Molinam Tract. 1. disp. 131. Fagundez lib. 1. cap. 14.

Concerning ADVENTITIOUS goods, however, since the father has the usufruct of these, the son cannot donate or dispose of them among the living by any contract whatsoever. Sons cannot, however, donate in view of death without the consent of the father.

Concerning PROFECTITIOUS goods, however, since they are altogether the father's, the son can dispose of nothing without the father's leave. But if they contract concerning these two, an action is given against them, as Bassaeus says V. Contractus.

OBSERVE, nevertheless, that a son can exit paternal power in many ways.

The FIRST is by emancipation, which consists in the supplement of age granted by the Prince, on which Instit. quibus modis ius patriae potestatis solvitur, §. praeterea.

By the common law, however, when father and son appear together before a judge, the son exits by reciprocal consent, as Molina diss 229. proves. By the same common law, emancipation properly so called is when the father emancipates the son Leg. 1. ff. de iis, qui sunt sui, vel alieni iuris princip. Instit. et Leg. iubemus, et Leg. ult. Cod. de emancip.

The SECOND is by the death of the father; for then indeed he exits from his power.

The THIRD is by the heresy of the father, even occult, cap. 2. §. ult. de haeret. in 6. See Molinam Tract. 1. disp. 9. Sanchez lib. 2. decal. cap. 24. num. 5.

The FOURTH way is marriage, which can take place even against the will of parents, as D. Bonaventure teaches in 4. dist. 29. quaest. ult., where he shows that no one can prevent him from contracting marriage.

The FIFTH is by the profession of the father, or of the son, in Religion.

The SIXTH, according to others, is the reception of sacred Orders.

The SEVENTH by the assumption of the son, or indeed of the Father, to the Episcopate.

The EIGHTH by PATRICIAN dignity as Councillor of the King, or Praetorian Prefect.

The NINTH is when the father is captured by enemies, or cast into exile. See Fagundez lib. 1. cap. 18. de contract.

THERE FOLLOW Religious, who can donate nothing, nor enter into any contract, without the license of their Superior. So D. Bonaventure in 4 dist. 15. part. 2. art. 2. quaest. 1., concerning whom Bassaeus treats V. Contractus, in the course of his tract, and Fagundez cap. 19., and we treated of it in the disput. de restit.

SIMILARLY slaves are excluded in those matters in respect of which they are slaves, and wives in those in respect of which they are under the power of husbands, as D. Bonaventure teaches in 4. dist. 29. quaest. ult. And this is the general rule for all subjects: that they cannot contract as to those matters in respect of which they are subjects. The general reason of D. Bonaventure is that for a contract liberty is required, and power over the things contracted about. And this rule will solve many things.

Quaestio VIII: Whether, and when, it is lawful to withdraw from a contract, the other party objecting

CONCERNING the obligation resulting from contract — something of which I said in quaest. 6., which is to preserve the contract — cases can nevertheless arise in which either party may be able to withdraw.

FIRST I bring forward: when satisfaction has been made on both sides for any contract whatever, it is licit for neither contracting party to withdraw from the contract, in any forum, even in conscience, whether by civil or by Canon law.

This is COMMON with D. Bonaventure in 4. dist. 35. passim, Sanchez Tom. 1. decal. lib. 3. cap. 15. num. 11. Meres de maioratu, p. p. quaest. 23. Molina tomo 1. de iustitia, tract. 2. disp. 258. The Gloss in Leg. ex placito, Cod. de rerum permut., where it is asserted that each is bound to the other concerning eviction.

I ASSERT second, the other party objecting, that it is unlawful in both forums, Poli, and Soli, to withdraw from nominated contracts entered into by mutual consent. It is gathered from cap. qualiter de pactis, according to leg. iuris gentium 7. ff. de pactis, Leg. si pecuniam, ff. de condict. causa data.

I ASSERT third, that although a pact has been confirmed by stipulation, if nevertheless one of the contracting parties has been unwilling to fulfill it on his side, it will be lawful for the other party, according to either law, to withdraw from such a pact and to reclaim whatever he gave. So Molina tract. 2. disput. 158. It is clear ex leg. 3. §. idem erit, ff. de condict. causa data, non secuta.

I ASSERT fourth. If we attend precisely to the disposition of the civil law, any one of the contracting parties can, the other unwilling, withdraw from any INNOMINATE contract (provided the matter is still intact), so that satisfaction has been made on neither side, and they remain within the limits of a bare pact, Molina disp. 258. It is clear ex leg. 3. §. praesertim in principio, and §. 1. and Leg. si pecuniam, ff. de condict. causa data, and from the Gloss, and Bartol. there; and it is the common opinion of all. Indeed, if the matter has been fulfilled on one side, but not yet on the other, you can withdraw without penalty according to the cited laws, even if the other is ready to fulfill on his side.

RIGHTLY, however, from the same laws Molina observes that, according to the same civil law, there is no place for repentance for him who has not fulfilled, with respect to him who has fulfilled.

I ASSERT fifth. Meanwhile, while one of the contracting parties does not dissent, the other cannot withdraw, against his will, both in the forum of conscience and according to either the civil or the Canon law, from a nominated contract already entered into and perfected, leg. sicut 5. Cod. de act. et obligat., joined with those laws which the Gloss there enumerates, verbo minime. LIMITED, however, are the contracts of precarium, mandate, and deposit, which do not forbid the grantor, the mandator, and the depositor from withdrawing.

Concerning PRECARIUM the matter is plain, ex Leg. cum precario, ff. de precario. Concerning the contract of mandate it is clear ex Leg. si mandavero, 2. §. finali, and Leg. si quis alieni, §. qui suscepit, ff. mandati. Concerning the contract of deposit it is gathered ex leg 1. §. penult. ff. de depositi.

ADD also the contract of partnership not having some determinate time affixed, Leg. verum, §. finali, ff. pro socio.

I ASSERT sixth, when a contract, consent having been given to it, does not receive from it some specific name, but in order to vindicate it further desires traditio of the thing, either on both sides, or on one side only; and it is not yet perfect by such traditio — one can meanwhile, while it is thus imperfect, if we attend to the civil law, withdraw. So Couar. in cap. quamvis pactum, 2. part. § 4. num. 14. Molina Tom. 2. tract. 2. disp. 257.

It is PROVEN, because a contract of this kind remains within the boundaries of a bare pact; but a bare pact does not give rise to an obligation in the CIVIL forum. leg. Iuris gentium 7. §. finali, ff. de pactis, there: nuda pactio obligationem non parit, sed parit exceptionem, leg. ex placito, Cod. de rerum permut.

IN the forum of conscience, however, from the natural law the obligation follows in all contracts, and before the civil law was introduced they already bound; as Vallaens teaches de iure emphyt. quaest. 6., Molina alleged above, Padella in Leg. Naturalis, §. etsi quidem, num. 17. ff. de praescript., Gomez Tom. 2. var. and others at Fagundez lib. 1. de contract. cap. 15.

I ASSERT seventh. The Canon law does not permit, at its own tribunal, withdrawing from a contract, even a bare one, cap. 1. de pactis, and cap. iuramenti 22. quaest. 5.

I ASSERT eighth. When one party is in default of fulfilling, he can withdraw according to every law, as the Doctors commonly teach in regula mora, de regul. iur. in 6.

I ASSERT ninth. The Donator can, according to every law, withdraw from a donation as long as the Donatarius has not accepted it. See Couar. in rubr. de testament. 3. part. numero 13. Sanchez lib. 1. de matrim. disput. 6. Molina above disput. 258. Fagundez lib. 1. cap. 15. num. 11.

They treat here: whether contracts are confirmed by oath; but of this below, disp. de Iuramento.

HERE, in passing, NOTE, from Bonacina disput. 3. de contract. quaest. 1. part. 1. num. 4., that one who promises something with an OATH can, before it is accepted, revoke his promise. The reason is that then the oath is accessory to the promise, whose nature it follows as of its principal; but no promise obliges before acceptance.

An OATH, moreover, affixed to a contract, has various effects; it first gives rise to a twofold obligation, one toward God, the other toward man: truly, if the contract is not affected by the oath, the second perishes and only the first subsists. Then it gives rise to an action of the party against the one swearing. Third, it makes the obligation confirmed by oath pass to the heirs; for it is real, not personal: understand this, however, when the oath affects the very contract. So Bonacina above, with Sanchez, alleged by him.

Tractatus I: PRIMUS DE VIRTUTIBUS THEOLOGICIS

Proemium I: Prooemium

Disputatio I: ON FAITH

Quaestio I: What FAITH signifies, and what it is

Quaestio II: What the object of FAITH is

Quaestio III: Whether the object of FAITH is something complex

Quaestio IV: Whether the object of FAITH can be false

Quaestio V: Whether the object of FAITH can be evident scientifically

Quaestio VI: Whether FAITH is concerned with those things which are seen by vision on the way

Quaestio VII: Whether the articles of FAITH are evidently credible

Quaestio VIII: Whether the things to be believed are rightly arranged according to the articles

Quaestio IX: Whether the articles of FAITH have grown over the course of time

Quaestio X: Whether FAITH has grown as regards light

Quaestio XI: Whether Faith has grown in certitude

Quaestio XII: Whether the articles of Faith are to be expounded by some authority which is an infallible teacher, and what it is

Quaestio XIII: What are the marks of the true Church, in which the authority of expounding FAITH resides

Quaestio XIV: What must be believed by the necessity of means

Quaestio XV: What things are to be believed by the necessity of precept

Quaestio XVI: Whether we are bound to confess FAITH, and when

Quaestio XVII: Whether it is lawful to dispute about FAITH, and when

Quaestio XVIII: Whether Faith resides in the Intellect

Quaestio XIX: Whether Faith is perfected by Charity, as by its form

Quaestio XX: Whether it is certain that FAITH remains without CHARITY

Quaestio XXI: Whether, and how, FAITH is a VIRTUE

Quaestio XXII: Whether FAITH is ONE VIRTUE

Quaestio XXIII: Whether FAITH is the first of the Virtues

Quaestio XXIV: Whether FAITH is more certain than any science, or than any intellectual habit

Quaestio XXV: Whether one can know with certainty that he has FAITH

Quaestio XXVI: In whom FAITH is found

Quaestio XXVII: Whether FAITH is a substantial Gift of GOD

Quaestio XXVIII: Whether the difference between FAITH and other acts, natural as opposed to supernatural moral acts, always arises from the object

Quaestio XXIX: On the effects of FAITH

Quaestio XXX: On the GIFT OF UNDERSTANDING

Dubitatio I: Whether UNDERSTANDING is a gift of the Holy Ghost

Dubitatio II: Whether the GIFT OF UNDERSTANDING can coexist with FAITH

Dubitatio III: Whether the GIFT OF UNDERSTANDING consists in the contemplation of the Creator and of Creation

Dubitatio IV: Whether the GIFT OF UNDERSTANDING is found in all who have grace, and whether in these alone

Dubitatio V: What is the necessity and utility of the GIFT OF UNDERSTANDING

Dubitatio VI: Whether* **the GIFT OF UNDERSTANDING** *corresponds to the sixth beatitude, namely, Blessed are the clean of heart, etc.

Dubitatio VII: Whether* **to the GIFT OF UNDERSTANDING** *there corresponds, among the fruits of the Holy Ghost, Faith

Quaestio XXXI: On the Gift of Knowledge

Dubitatio I: Whether* **KNOWLEDGE** *is a gift of the Holy Ghost

Dubitatio II: Whether knowledge is concerned with Divine things

Dubitatio III: Whether the gift of knowledge is speculative

Dubitatio IV: Whether the third Beatitude corresponds to the Gift of Knowledge: Blessed are they that mourn, etc.

Disputatio II: On Unbelief

Quaestio I: What UNBELIEF is, and what kind of sin it is

Quaestio II: Whether all the works of unbelievers are sins

Quaestio III: Whether unbelievers can be compelled to hear FAITH

Quaestio IV: Whether unbelievers can be compelled to embrace our FAITH, when it has been sufficiently set forth

Quaestio V: Whether unbaptized unbelievers can be compelled to abandon errors or rites contrary to natural reason

Quaestio VI: Whether the rites of unbelievers are to be permitted

Quaestio VII: Whether it is lawful to make agreements with unbelievers about the toleration of their rites

Quaestio VIII: Whether unbaptized unbelievers can retain power over the Faithful, and whether they can be deprived of it

Disputatio III: On Heresy

Quaestio I: What HERESY is

Quaestio II: Whether one who doubts about the articles of FAITH is a heretic

Quaestio III: Whether one who gives merely opinionative assent to an article of FAITH is a heretic

Quaestio IV: Whether, and what, Ignorance excuses from Heresy

Quaestio V: What pertinacity is required for HERESY

Quaestio VI: Whether, for one to be deemed a Heretic, it is necessary that he have been baptized and a believer

Quaestio VII: Whether the Church can compel heretics to receive the Catholic FAITH

Quaestio VIII: On the other means the Church uses against heretics, by forbidding their Books

Quaestio IX: Whether we are bound to avoid the conversation of heretics

Quaestio X: What excommunication is inflicted upon heretics

Quaestio XI: On the other spiritual punishments of heretics

Quaestio XII: On the temporal punishments of Heretics

Disputatio IV: On Hope

Quaestio I: What HOPE is

Quaestio II: What the material object of HOPE is

Question III

Quaestio IV: Whether a certain object is set forth for HOPE, and is hoped for

Quaestio V: Whether Hope is a Virtue

Quaestio VI: Whether HOPE is a Theological Virtue

Quaestio VII: Whether HOPE is at times formless

Quaestio VIII: Whether HOPE arises from merits

Quaestio IX: Whether Hope precedes Charity

Quaestio X: What the proximate subject of HOPE is

Quaestio XI: Whether HOPE remains in the Blessed

Quaestio XII: Whether there is a precept of hoping in GOD

Dubitatio VI: Whether* the GIFT OF UNDERSTANDING *corresponds to the sixth beatitude, namely, Blessed are the clean of heart, etc.

Dubitatio VII: Whether* to the GIFT OF UNDERSTANDING *there corresponds, among the fruits of the Holy Ghost, Faith

Dubitatio I: Whether* KNOWLEDGE *is a gift of the Holy Ghost