Palladium theologicum, Tomus quintus: De virtutibus

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.